Sexual harassment is defined and outlined in multiple pieces of legislation in Ontario. The Ontario Human Rights Code (the “Code”) defines sexual harassment and provides that employees have the right to be free from sexual harassment in the workplace. The Occupational Health and Safety Act (“OHSA”) also defines sexual harassment in the workplace. The OHSA further states that employers must have and review policies regarding sexual harassment as well as procedures by which an employee may bring a complaint of sexual harassment. Employers also have a duty to investigate all claims of sexual harassment.
Despite all of this legislation, there is no positive obligation under occupational health and safety legislation placed on employers to prevent sexual harassment in the workplace. Most of the above legislation is in place, not to prevent sexual harassment, but to deal with it when it occurs and is reported.
The Law in the United Kingdom
Unlike Ontario, the United Kingdom recently amended its Equality Act to include a positive duty on employers to prevent sexual harassment in the workplace. Section 40A states that “an employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment”. Notably, where an employee successfully brings a claim for sexual harassment, when an employer has failed to take reasonable steps to prevent sexual harassment the damages awarded to an employee could be increased by up to 25%. These amendments came into force October 26, 2024.
The Equality Act does not define “reasonable steps” to prevent sexual harassment, but the Equality and Human Rights Commission (EHRC) provides some guidance. In its 8-step guide, the EHRC lists the following examples of factors to consider when assessing the potential risk of sexual harassment in the workplace:
– Where are the power imbalances?
– Is there a lack of diversity in the workforce?
– Is there job insecurity for a particular group or role?
– Are staff working alone or at night?
– Do your staff have customer-facing duties?
– Are customers or staff drinking alcohol?
– Are staff expected to attend external events, conferences or training?
– Do staff socialise outside of work?
– Do staff engage in crude or disrespectful behaviour at work?
Takeaways for Employers
Though there is no statutory duty under occupational health and safety legislation to prevent sexual harassment in Ontario, Employers still must be mindful of their obligation to maintain policies and procedures centered around handling complaints of sexual harassment from employees. Employers must also take seriously their obligation to investigate claims of workplace sexual harassment.
Takeaways for Employees
Workplace sexual harassment is unfortunately very prevalent and disproportionately affects women. The United Kingdom is taking a more proactive and preventative approach to eliminating sexual harassment in the workplace. Though Ontario has several laws in place to deal with complaints of sexual harassment, there is no proactive legal equivalent to the United Kingdom’s Equality Act provisions cited above. If you are an employee who is experiencing workplace sexual harassment, do not hesitate to contact an employment lawyer to discuss your legal rights and options going forward.
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If you are an employer investigating the conduct of an employee, contact our lawyers to make sure that you are up to date on your obligations and potential liabilities.
If you are an employee who is experiencing workplace sexual harassment, contact our lawyers to review your rights and options.
Author: Elizabeth McConkey
Date: November 05, 2024
