Area of Law: Employment Law
Answer # 619
What to do if you are sexually harassedRegion: Ontario Answer # 619
If you are being sexually harassed, you have several options. The option you choose will depend on your particular situation and the place you work. In all cases, the harassers can be held responsible for their actions. In most cases, the employer is also responsible for dealing with the problem in a fast and proper way. The main options for people being sexually harassed include talking to the harasser, complaining to the employer, filing a complaint with the Human Rights Tribunal of Ontario, suing the harasser and/or the employer, or having criminal charges laid. If you are not able to quickly resolve the situation in an informal way, you should discuss your options with a lawyer.
Talk to the harasser
The first option is to talk to the harasser. Depending on the situation, you may feel comfortable enough to tell the harasser that you do not like what is going on. Sometimes if you let the person know in private that you would rather not hear their jokes or comments, they will stop. It is usually best to first try to solve problems informally if possible.
Talk to a manager or supervisor
If you have tried talking to the harasser, or feel that the problem is too serious, then your second option is to talk to a manager, supervisor or the human resources department of your company. It is usually best to put your complaint in writing and keep notes of any meetings you have. Under the Occupational Health and Safety Act (OHSA) your company is required to have a policy concerning harassment in the workplace. If there are six or more employees, this policy must be in writing and clearly posted in the workplace. An employer must also develop and maintain a workplace harassment program which outlines how the workplace harassment policy will be implemented. For example, the program will detail the procedures for making a complaint, as well as the procedures regarding how the employer will deal with the complaint. Consequently, when making a complaint of sexual harassment, you should follow the procedures outlined in the program.
If you make a complaint to your employer, the employer will usually tell the harasser about the complaint and give that person a chance to explain the situation. Under the OHSA, employers are required to investigate all incidents of sexual harassment and inform the parties of the results. If the employer believes that there was sexual harassment, the employer can do several things. Usually, the employer will tell the harasser to apologize and to stop the harassment. In addition, the harasser may be given a warning that is put in their file, they may be suspended with or without pay, or they may be fired if the harassment is very serious, or if the harassment does not stop.
Complain to the Human Rights Tribunal of Ontario (HRTO)
If your complaint has not been dealt with properly by your employer, or the problem is very serious, you may be able to make a complaint to the Human Rights Tribunal of Ontario (HRTO). The HRTO handles human rights complaints under the Ontario Human Rights Code. A claim of discrimination or harassment can be brought to the HRTO by filing an application. The HRTO resolves applications by helping the parties settle the claim through its mediation process. If the parties do not agree to mediation, or mediation does not resolve the application, the HRTO holds a hearing to decide the application.
Sue the harasser and/or the employer
The fourth option, if you suffer a financial or emotional loss because of the sexual harassment, is to sue the harasser and possibly the employer as well. The employer is responsible to promptly and effectively bring an end to the sexual harassment once they are aware of it or when they should have been aware of it. If the employer fails to do this, you may be able to recover some or all of your loss from the employer. This option is used most often by employees who were fired or forced to quit as a result of the sexual harassment. The legal issue surrounding sexual harassment lawsuits is very complicated and you should consult with a lawyer for assistance.
Bring criminal charges
The fifth option applies only to certain types of sexual harassment. If you are forced into any sexual act against your will or you are touched in a sexual way without your consent, the harasser may be guilty of sexual assault, which is a criminal offence. You can contact the police and report the situation. If appropriate, the police can then lay criminal charges.
Deciding what to do
Before deciding on an option, you should write down a list of what happened, when it happened, and who was involved. This way, you will have a clear idea of what you are claiming, and it will make it easier for someone hearing your complaint to understand your situation.
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.
Visit the Employment and Social Development Canada website for more information.
If your situation is not quickly and completely resolved through an informal process, you should seek the advice of a lawyer. For more information about filing a harassment claim with the Human Rights Tribunal of Ontario, visit hrto.ca, or visit the Ontario Human Rights Commission website at ohrc.on.ca.
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