The Ontario government introduced Bill 132, the “Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015” (the “Act”) on October 27, 2015. This Act is part of the Ontario Government’s Action Plan known as “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment.” If passed, the Act will amend six provincial statutes with respect to sexual violence, sexual harassment, domestic violence and other related matters. The intention of the Act is to “improve support for survivors in the justice system while protecting students and workers…from the threat of sexual violence and harassment.”
Of importance to employers, there are proposed changes to the Occupational Health and Safety Act(“OHSA”) under the Act. These changes will create specific duties for all employers to develop policies and procedures to prevent sexual harassment in the workplace, including a duty to investigate incidents and complaints. These amendments will impose a financial burden on employers.
The important proposed amendments to the OHSA are:
- an expansion of the existing obligation for employers to have a workplace harassment policy or program to include workplace sexual harassment within that policy;
- a duty for employers to ensure an investigation is conducted into incidents and complaints of any workplace harassment, including workplace sexual harassment;
- a duty for employers to ensure that the complainant and the respondent of any workplace harassment complaint be informed of the investigation results;
- a duty for employers to ensure any corrective measures that need to be taken as a result of an investigation into workplace harassment occurs; and
- an expansion of the role of Occupational Health and Safety inspectors by granting inspectors the power to order investigations and corresponding reports, at the employer’s expense, into workplace harassment complaints.
The Act will also expand the definition of “workplace harassment” in the OHSA to include “workplace sexual harassment,” which will be defined as:
“(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.”
For the benefit of employers, the proposed changes to the OHSA include the addition of a provision to clarify that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.
New law will mean significant changes for employers
If the Act is passed, the proposed changes to the OHSA will come into force on either July 1, 2016 or six months after the Act receives Royal Assent, whichever date is later.
As with any proposed legislation, the Act may undergo revisions in the legislative process before it is passed into law. The Act, if passed, will have a significant impact on employers as it will require a review and revision of existing workplace harassment policies and programs, and make employers subject to increased powers by OHSA inspectors.