By Cheryl A. Edwards and Jeremy Warning
An incident in which a male spectator at a Toronto soccer match uttered a vulgar phrase into the microphone of a female television reporter has, again, generated intense public discussion regarding the issue of sexual harassment. This incident has added to the recent list of allegations of sexual harassment and violence made against public figures such as Jian Gomeshi and Bill Cosby, and those in positions of power such as an Ontario justice of the peace (against whom the allegations were proven and were sufficient to warrant his removal from his position). Regrettably, sexual harassment is not a new issue. However, the Ontario government recently signalled that it will be taking new steps to ensure employers have new, specific occupational health and safety (OHS) legal obligations to prevent and address sexual harassment and sexual violence.
On March 6 an action plan titled It’s Never OK: An Action Plan To Stop Sexual Violence And Harassment was announced. It appears to include proposals to amend the Ontario OHSA to include a specific definition of “sexual harassment” and impose specific investigation obligations on employers. It also details the government’s intentions to bring about other systemic changes, involving the Ontario Occupational Health and Safety Act (OHSA) and its enforcement to comprehensively address sexual harassment. These intentions may include creating a code of practice pursuant to OHSA, establishing workplace inspection teams for enforcement and various other possibilities. These proposed changes would dovetail with current Human Rights Code obligations for employers, and remedies, as well as Criminal Code sanctions applicable to certain behaviours.
Candidly, the scope of prospective changes remains unclear. Yet, one question that immediately arises from the content of the action plan is whether substantial OHSA changes specific to one type of harassment are needed or would assist given existing OHS harassment laws. Other changes, which could include new harassment-related employer or supervisory duties, work refusal rights, or enforcement provisions for employers who fail to protect workers from sexual harassment might effect more significant workplace change and would certainly change the OHS landscape for employers.
The action plan includes a number of OHSA-specific commitments, and some that go far beyond commitments related to OHS legislation and enforcement. Among the most important commitments are the intention to:
Introduce legislation relating to sexual violence and harassment in the workplace, on campus, in housing and through the civil claim process. No details of whether this will be restricted to OHS or human rights legislation or other measures have been provided;
Strengthen the OHSA by enacting a definition of sexual harassment, a specific employer duty respecting harassment and establishing a code of practice to help employers develop stronger sexual harassment policies; and
Engage in numerous additional initiatives related to the education, health care, social services and justice sectors.
The government committed to provide an update on the action plan on its first anniversary. So what will the new OHS-related provisions look like? Unfortunately, attempts to obtain information from Ontario Ministry of Labour contacts have yet to yield any definitive information. The Ontario government anticipates investing $41 million in its action plan. Independent media reports indicate $5.8 million will be spent to support amendments to the OHSA and on workplace inspection teams. At the time of writing, the precise nature of the proposed OHSA legislative changes and timing remains unclear.
Current Ontario OHS harassment obligations
Ontario was one of the last Canadian jurisdictions to add workplace violence prevention provisions to its OHS legislation, but was one of the leaders in adding workplace harassment provisions. Effective June 15, 2010, Bill 168 added definitions of workplace violence and harassment to the Ontario OHSA. Workplace harassment is defined broadly as “a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”. Harassment is a matter for which Ontario employers must take several steps including:
Developing a written harassment policy and review the harassment policy at least annually;
Developing and implementing a workplace harassment program (a procedure for worker reporting and employer investigation of workplace harassment incidents); and
Providing training to workers on the harassment policy and program.
The term harassment remains broadly defined as encompassing any course of conduct unwelcome to a worker in the workplace. Notably, it is not tied to personal characteristics such as sex, race, sexual orientation or other matters that are protected grounds under provisions of human rights legislation. Consequently, the OHSA already includes a broad and all-encompassing harassment definition that, arguably, includes sexual or any other type of personal harassment.
Gazing into a crystal ball is always difficult. It seems clear, however, that certain amendments to the Ontario OHSA are likely, and several others are possible:
- a) New definition of sexual harassment. It seems likely a new and specific definition of sexual harassment will be added to the OHSA. How a clear definition will be achieved, is uncertain. Further, unless new rights or remedies relate to this particular type of workplace harassment, it remains to be seen how the inclusion of a specific definition will improve upon the obligations of employers or worker rights, when Ontario already has the most expansive definition of harassment possible. For comparative purposes, it’s worth noting that two jurisdictions — Saskatchewan and Manitoba — define harassment as related to prohibited grounds such as race, creed, religion, colour, sex, sexual orientation (without defining sex or sexual harassment).
- b) New OHS duty to protect workers from harassment or sexual harassment.Only one jurisdiction in Canada — Saskatchewan — clearly sets out an obligation to ensure, as far as is reasonably practicable, that workers are not exposed to harassment respecting any matter or circumstance arising out of the worker’s employment. The Ontario action plan suggests the OHSA amendments could include a new employer obligation to “make every reasonable effort to protect workers from harassment, including sexual harassment in the workplace”. It’s unclear how a specific obligation to protect workers from sexual harassment would be an improvement on a general duty to protect all workers from all types of harassment. No mention is made of supervisory duties to protect workers, or worker duties not to harass fellow workers. But it is reasonable to anticipate that such duties would be components of a more proactive obligation to protect workers.
- c) Right to refuse work for harassment. This is not mentioned in the action plan. It will no doubt arise as an issue because currently there is no right to refuse work on the basis of workplace harassment. However, the OHSA specifically permits a worker to refuse work because of workplace violence.
- d) Harassment-related enforcement provisions. The action plan suggests an enforcement team of inspectors, trained to address complaints of workplace harassment — including sexual harassment, will enforce the new harassment provisions. This has the potential to result in a number of significant changes in how workplace harassment is addressed in Ontario.
- i) Ministry of Labour investigations of workplace harassment complaints: Currently, Ministry of Labour inspectors do not investigate the merits of a workplace harassment complaint. Rather, investigation of the details is left to the employer. However, the changes suggested in the action plan make it reasonable to anticipate that Ministry of Labour inspectors may carry out workplace harassment investigations involving the same detailed collection of information as is currently gathered during other OHSA investigations. Further, it raises the question of whether inspectors might have a role in the resolution of workplace harassment issues. This could happen if Ontario is influenced by the system in Saskatchewan. There, in addition to the general duty for employers to prevent harassment, OHS legislation expressly permits workers to obtain the assistance of OHS officers in complaint resolution.
- ii) Remedial measures required by order: OHS inspectors have broad powers to issue compliance orders requiring the workplace parties to address health and safety issues. Importantly, these powers include the authority to issue stop-work orders and the production of compliance plans. If such powers can be exercised by inspectors addressing issues of workplace harassment, there could be a significant evolution in the types of orders that could be issued under the OHSA. Will employers see orders impacting staffing or work assignments (such as an order requiring a supervisor or worker to be reassigned to different job, shift or work location)? Will employers be ordered to provide workers or supervisors with sensitivity, respectful workplace or other training to address harassing behaviour? These questions cannot be answered now but could be the kinds of orders that may be issued under an amended OHSA.
iii) Prosecution: The most serious enforcement mechanism has not yet been utilized in relation to workplace harassment. However, expanded provisions relating to workplace harassment may be supported through prosecution. If this happens, employers may be facing prosecution under the OHSA in addition to any remedies that may be sought by workers in other forums — such as through a grievance, civil claim or complaint under the Ontario Human Rights Code.
To date, there have been no steps taken to implement any of the potential OHSA changes that are contained in the action plan. With a stated commitment to provide an update on the action plan after 12 months, we anticipate developments will soon begin to unfold.
Cheryl Edwards and Jeremy Warning practice Occupational Health and Safety Law with the Toronto office of Mathews, Dinsdale & Clark LLP.