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Employers' responsibility to deal with sexual harassment complaints

Region: Ontario Answer # 620

Even though harassers are responsible for their actions, the employer is also responsible in most cases for dealing with the situation in a prompt and proper way. The employer is responsible if the employer knew or should have known about the sexual harassment. If the employer fails to deal with the situation properly, the employee who was being harassed may be able to sue the employer.

Laws relating to discrimination and harassment at work can be complex. To get help, call a lawyer now.

In some situations, an employer can even be held responsible for dealing with sexual harassment by someone who is not an employee, or if an employee sexually harasses someone outside the workplace. For example, if someone comes to fix the photocopier and sexually harasses an employee, or, if an employee is travelling to a work related conference, and sexually harasses someone at the conference, the employer may be responsible for dealing with the situations.

Under the Occupational Health and Safety Act (OHSA), employers are required to have a policy against sexual harassment. In workplaces with six or more employees (or if less than six employees, but ordered by a Ministry of Labour inspector), the policy must be in writing and clearly posted in the workplace  Employers are responsible for making sure that the policy will actually help someone who has been harassed. In addition, the policy must clearly state that workers can report incidents of workplace harassment to a person other than the supervisor or employer, where the supervisor or employer is the alleged harasser.

Employers’ duty to investigate

When an employer becomes aware of sexual harassment, they should immediately investigate the situation in a confidential and discrete way. The employer must take reasonable actions to resolve the problem, but must also deal fairly with the harasser. Someone who is being accused of sexual harassment should always have a chance to explain their side of the story before the employer takes action against them. An employer should also tell the person making the complaint that the alleged harasser will be told about the complaint. Under the OHSA, employers have the following specific duties:

1. Investigate

Employers must investigate all incidents of workplace harassment:

(i) regardless of whether an employee has made a formal or informal complaint, or

(ii) no complaint was made but the employer is aware of an incident.

The employer, or its investigator must prepare a written report which summaries the steps that were taken during the investigation. The report must also include: the complaint, the complainant’s allegations and the response from the alleged harasser, and any evidence from witnesses or elsewhere.

2. Keep the information confidential

Any information about an incident or complaint of harassment cannot be disclosed by the employer, unless it is necessary for the purposes of the investigation, or for taking corrective action, or is otherwise required by law.

3. Inform the parties of the results

Once an investigation has taken place, both the person who has made the compliant, and the alleged harasser (if he or she is a worker of the employer) must be informed in writing of the results of the investigation, and of any corrective actions that have or will be taken.

4. Consult with the Health and Safety Committee

Employers must consult with the workplace health and safety committee or a representative in order to develop a written workplace harassment program. Among other things, the program must set out:

(i) procedures for how workers are to report incidents of workplace harassment, and

(ii) how incidents and complaints of workplace harassment will be investigated and dealt with.

In addition to the above requirements, the OHSA also gives occupational health and safety inspectors the power to order an employer to hire an impartial third party to investigate. The third party must possess “such knowledge, experience or qualifications” as outlined by the inspector. For small employers, a member of the corporation’s board of directors can usually act as the impartial third party.

Federal employers

As of January 1, 2021, changes to rules relating to workplace violence, harassment, and sexual harassment in federal workplaces have changed. Policies in the federal government’s new Work Place Harassment and Violence Prevention Regulations, and corresponding changes to the Canada Labour Code have been consolidated and broadened in Part II of the Code. The definition of workplace “violence and harassment” has been expanded to include:

“any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee.”

As part of the changes, employers working in a federally regulated industry or workplace, should:

  • understand the definition of workplace harassment and violence
  • develop a workplace harassment and violence prevention policy with the policy committee, the workplace committee or health and safety representative
  • assess the risk of workplace harassment and violence
  • conduct employee harassment training to be completed by Jan. 1, 2022.

 

Get help

A criminal record will appear on an employment police check and will affect your ability to get or keep a job. To erase your criminal record, learn more at Pardon Partners. It’s easier than you think.

To have someone conduct a workplace investigation and for other investigation services, contact our preferred Investigators, MADPI GLOBAL .

Laws relating to discrimination and harassment at work can be complex. To get help, call a lawyer now.


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