Update on Bill 132: Sexual Violence and Harassment Action Plan Act
By Laurie Jessome
On March 8, 2016, Bill 132 received Royal Assent at the Legislative Assembly of Ontario. The Bill is part of the Ontario government’s strategy to support survivors of sexual violence and eliminate sexual harassment. Bill 132 amends several existing laws that affect people experiencing sexual harassment and violence in the province. Of particular note to employers are the amendments to the Occupational Health and Safety Act (OHSA).
Many Ontario employers will recall “Bill 168,” a bill that was passed into law in 2009 and which amended OHSA to deal specifically with workplace violence and harassment. Bill 132 expands on - and clarifies - certain of the concepts that were introduced into OHSA as a result of Bill 168. The most significant changes are as follows.
- OHSA’s definition of “workplace harassment” is being expanded to include (a) engaging in 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, or (b) workplace sexual harassment. The amendment also specifically notes 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.
- “Workplace sexual harassment” is now defined in the legislation to mean (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 expressed, 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. These definitions closely track the definitions in the Ontario Human Rights Code.
- Employers will now be obligated to develop a written program to respond to issues of harassment and sexual harassment in the workplace. Employers must review this program “at least annually” and the program must:
(a) include measures and procedures for workers to report incidents of workplace harassment to a person other than the employer, or the supervisor if the employer or the supervisor is the harasser;
(b) set out how incidents or complaints of workplace harassment will be investigated and dealt with;
(c) set out how information obtained about an incident or complaint (including identifying information) will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action or is otherwise required by law; and
(d) set out how a worker who has allegedly experienced workplace harassment and the alleged harasser (if he or she is also a worker for the employer) will be informed of the results of the investigation and of any corrective action that has been taken.
- OHSA will now also require employers to investigate incidents and complaints of workplace harassment in a manner that is “appropriate to the circumstances” and report back on the outcome of that investigation to the complainant.
- Employers must provide training and instruction to their workers on their workplace harassment policy and program.
- The Ministry of Labour will also have the power to order an employer to have an “impartial person possessing such knowledge, experience or qualifications as are specified by the inspector” to conduct an investigation into allegations of workplace harassment and provide a written report of his or her findings. This impartial investigation must be at the employer’s expense.
Bill 132 will require Ontario employers to revisit their workplace violence and harassment policies to ensure that they are compliant with the new requirements in OHSA. They will also need to develop training protocols to ensure that both new hires and existing employees receive training that is compliant with the legislation. The amendments to OHSA also seem designed to encourage more extensive use of independent workplace investigators rather than depending on internal investigators, whether from the legal team or human resources department.
These changes to OHSA come into force as of September 8, 2016.
Please contact Laurie Jessome or other members of Cassels Brock & Blackwell’s Employment and Labour Group if you would like further information or support in preparing for the impact of Bill 132.
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