In the modern professional landscape, the importance of nurturing a workplace that is safe, respectful, and inclusive cannot be overstated. Unfortunately, despite efforts, incidents of sexual harassment can still undermine this optimal environment.
In Ontario, employers have a legal and ethical responsibility to address and prevent sexual harassment at work. This blog post outlines the nature of sexual harassment claims and the responsibilities of employers under Ontario’s current legislation.
Understanding Sexual Harassment
Under the Ontario Human Rights Code (the “Code”), every individual working in Ontario is protected from harassment based on sex, sexual orientation, gender identity, or gender expression. This protection extends to sexual harassment, ensuring that employees have the right to freedom from such behavior. Should an employee experience harassment, under the Code they are entitled to bring a complaint to the Human Rights Tribunal.
Additionally, Ontario’s Occupational Health and Safety Act (“OHSA”) further strengthens the provisions against workplace sexual harassment by placing responsibilities on employers to keep their workplaces free from harassment. The OHSA defines workplace sexual harassment as:
(a) Engaging in a pattern of vexatious comment or conduct against a worker in a workplace that is known or reasonably expected to be unwelcome,
(b) Engaging in a pattern 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 reasonably expected to be unwelcome, or
(c) Making a sexual solicitation or advance towards a worker in a position to confer, grant, or deny benefits or advancements, knowing or reasonably should know that the solicitation or advance is unwelcome.
Recognizing Employer Responsibilities
Ontario law imposes several key obligations on employers to prevent and address sexual harassment. These responsibilities are primarily set forth in the Code and the OHSA.
Developing and Implementing Policies
Under the OHSA, employers are required to develop and implement a workplace harassment policy. This policy must include measures and procedures for workers to report incidents of workplace harassment and detail how the employer will investigate and deal with incidents or complaints.
- Training and Education
In fulfilling OHSA obligations, an employer is responsible for implementing and maintaining policies and programs aimed at preventing workplace harassment. In addition, Employers must provide training to employees about the workplace harassment policy and program. This training should educate employees about what constitutes sexual harassment, how to report it, and what procedures will be followed once a report is made.
- Prompt and Thorough Investigations
If an incident or complaint of workplace harassment has been reported, employers are obligated to conduct an investigation that is appropriate in the circumstances. This involves ensuring the investigation is unbiased, respects the privacy of all individuals involved, and is conducted in a timely manner.
- Taking Corrective Action
Once an investigation has been completed, the employer is responsible for taking corrective action if the complaint was substantiated. This can range from disciplinary measures against the harasser to implementing changes in the workplace to prevent further incidents.
- Ensuring Non-Retaliation
Employers must ensure that employees who report sexual harassment, or participate in an investigation, are protected from retaliation. Any form of retaliation can lead to further legal consequences under the Code and the OHSA.
Handling a Sexual Harassment Claim: Key Steps
Navigating a sexual harassment claim can be a challenging process. Here are the critical steps an employer should take when faced with such a claim:
- Take the complaint seriously: Every complaint deserves attention and must be treated with respect. Ignoring or trivializing a complaint can exacerbate the situation and lead to legal issues.
- Ensure confidentiality: Maintain privacy throughout the process. Only those who need to know about the complaint should have access to this information.
- Launch an impartial investigation: An unbiased investigation is essential. If the necessary objectivity isn’t possible internally, consider hiring an external investigator.
- Document everything: Keeping a detailed record of all actions taken during the investigation can be beneficial in the event of future legal proceedings.
- Provide support to the complainant: It’s essential to provide support and resources to the complainant, such as counseling or adjustments to their working conditions, if necessary.
- Take appropriate action: If the complaint is substantiated, take appropriate disciplinary action and implement changes to prevent future incidents.
Handling sexual harassment claims is a significant responsibility for employers in Ontario. Not only are these actions mandated by law, but they also play a critical role in maintaining a respectful and safe workplace environment. By understanding and fulfilling their legal obligations, employers can ensure they are equipped to respond effectively and appropriately to sexual harassment claims.
Additionally, fostering a work culture that is proactive in preventing such incidents can greatly contribute to the overall health and morale of the workplace. It is essential to keep updated with changes in legislation, seek professional legal advice when needed, and consistently promote a zero-tolerance stance on sexual harassment. By doing so, employers can continue to uphold their responsibility in creating and maintaining a respectful, inclusive, and safe working environment for all.
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