Employer responsibilities around workplace sexual harassment have changed.
It’s been a few months since the Ontario government enacted statutory amendments to Ontario’s Occupational Health and Safety Act which expanded employers’ responsibilities to investigate, address and document incidents of workplace sexual harassment.
While most employers would say that they were doing their best to foster a no-tolerance policy when it comes to sexual harassment in their workplaces, in our experience, most employers still don’t know enough about the details and implications of Bill 132 – and what they might mean for their bottom line if an issue were to arise.
With that in mind, here are 5 things that we think Ontario employers need to know in order to protect both their employees and their business when it comes to workplace sexual harassment and Bill 132.
- **Employers must provide training. **It’s no longer enough to put a paragraph about sexual harassment in your employee handbook and then hope for the best. Companies must provide detailed training which includes procedures for reporting incidents, assurances of confidentiality, and how reports will be investigated. - **Employers must investigate.** If an employee reports an incident of sexual harassment in the workplace, the employer must investigate, regardless of the perceived ‘seriousness’ of the allegation or the situation. Both the employee who reported the incident and the person accused of perpetrating the harassment must be informed, in writing, of the results of the investigation. - **Employers who don’t investigate could end up paying a big price.** Companies who fail to investigate or who fail to prevent workplace sexual harassment can be fined [as much as $500,000](http://www.canadianlawyermag.com/6267/Complying-with-new-harassment-legislation-in-Ontario.html) , though this penalty has not yet been tested in the courts. What is more likely is that employers will be on the hook for the costs of court-ordered third-party investigations – and that could easily run to tens of thousands of dollars. - **Ensure the person in charge of the investigation is qualified to do it. **For small and mid-sized organizations that don’t have large HR or legal departments, it can be tempting for an investigation to be done – sometimes half-heartedly – by a senior manager or executive who may have no real knowledge or experience of how to conduct a sexual harassment investigation. Because the Ministry of Labour can force a company to reconduct an investigation – at their own cost, and with much more expensive experts – it’s important for employers to engage or train an expert if they don’t have one on staff. - **Conduct background screening and criminal checks –** **before a new hire is made. **When sexual harassment suddenly occurs in a workplace that hasn’t experienced that problem in the past, it can often be traced to new hires who have a history of similar behaviour, sometimes including criminal charges. Better pre-employment screening, including criminal records checks, can help to prevent problems before they become an issue for employers.
The bottom line?
While the full legal and cost implications of Bill 132 won’t be known for some time, as cases work their way through the courts, employers who are fully aware of their responsibilities and take some simple precautions will find themselves better protected in the event of an incident.