All workers should have the ability to complete their job duties in a safe work environment. Unfortunately, workplace harassment is a very real problem that many workers have to face. In the past, workplace harassment was largely governed by Section 5(2) of the Human Rights Code, and common law rules of contract. However, in December of 2017, expansive changes were made to the Ontario Occupational Health and Safety Act (the “OHSA“), making it the cornerstone of workplace legislation. The OHSA now sets out the rights and responsibilities of all parties in a workplace, including both employers and employees. Notably, the OHSA is not limited to specific grounds of discrimination, such as age, sex, or national origin. Thus, employers are now required to have a policy which generally addresses harassment in all its forms and from all people.
Workers can face harassment in any workspace, from any individual, in a variety of ways. While the harassing individual might be a fellow employee, supervisor, or owner, the individual does not necessarily have to be someone employed by the employer. The harassing individual may be someone that the worker is required to interact with during the course of completing her job tasks. For example, interacting with a customer or a patient. The harassing individual might not have any professional connection to the workplace, such as a domestic partner of a fellow employee. The OHSA defines a worker’s workplace as “any land, premises, location or thing at, upon, in or near which a worker works” (section 1). The range of unwanted behaviours can vary from offensive statements all the way to physical violence.
The OHSA defines workplace harassment as “engaging in the course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome” (section 1.5(a). This definition also includes workplace sexual harassment. When we hear the word “harassment,” often scenes of physical violence or unwanted touching come to mind. However, workplace harassment also includes psychological harassment.
Workplace harassment can take many forms, but typically involves unwelcome words and/or actions that are known, or should be known, to be offensive, humiliating, or demeaning. Workplace harassment can also include behavior that intimidates a worker. Common examples include:
- Making offensive or intimidating remarks and/or jokes;
- Displaying or circulating offensive or intimidating pictures or written material;
- Making offensive or intimidating phone calls;
- Sending offensive or intimidating text messages or e-mails; or
- Making unwanted sexual advances. See my earlier article on Sexual Harassment in Ontario for more information on that topic.
In most situations, the unwanted conduct occurs more than once. The offensive behaviour might take place over the course of a day, or over weeks or months. For example, a fellow employee who sends several racially offensive e-mails to another employee is most likely engaging in workplace harassment. While less common, it is possible that the offensive conduct only occurs once. For example, one unsolicited sexual advance from a manager towards an employee.
While the OHSA gives employees experiencing workplace harassment greater protections, it does not provide such an individual with the right to refuse to work, as one would have if she had reason to believe she may be endangered by workplace violence. Workplace harassment can easily escalate to threats of, or actual, physical violence. It is vital therefore that employers and employees work together to address and deal with workplace harassment properly before the situation turns into workplace violence.
Workplace Harassment Policy
The OHSA requires that employers prepare a policy on workplace harassment, and review the policy, at minimum, on a yearly basis. This is a requirement for all employers, regardless of size or number of workers. If there are six or more workers regularly employed, this policy must be in writing and be placed in a conspicuous location within the workplace. The workplace harassment policy should contain several pieces of information, including but not limited to:
- Language on the employer’s commitment to properly handling workplace harassment;
- A statement concerning the various sources workplace harassment may stem from, such as supervisors, fellow employees, customers, and domestic partners; and
- Details concerning the responsibilities of each individual in the workplace in addressing workplace harassment.
The workplace harassment policy should encourage workers to report any and all harassment concerns they have. Once the policy is completed, it should be dated and signed by the highest level of management, such as the President or Chief Executive Officer.
Workplace Harassment Program
In addition to the workplace harassment policy, the OHSA requires employers to develop a program to implement the policy. This program must be developed in consultation with the joint health and safety committee or health and safety representative. Once completed, this program must be put in writing. This program must comprise several components, including but not limited to:
- Procedures for workers to report workplace harassment to the employer or supervisor;
- Procedures for workers to report workplace harassment to someone other than the employer or supervisor in the event the employer or supervisor is the alleged harasser;
- Details on how the reported complaints of workplace harassment will be handled and investigated;
- Details on how disclosure of identifying information will be handled; and
- Details on how the individual who reported the workplace harassment will be informed of the results of the investigation and of any corrective action.
Once a harassment policy and program have been established, the OHSA requires the employer to provide appropriate instruction to all workers on their contents. Under the OHSA, workers include not only full-time employees, but also part-time, contract, and temporary employees.
While implementation of the OHSA’s requirements, including creating a workplace harassment policy and program, have made great strides in curbing workplace issues, it is important to remember that even the best efforts will not be able to solve every situation. Workplace harassment can all too easily turn into violence. The police should be immediately contacted if a threat of violence, or an act of violence, has taken place in the workplace.
The OHSA is also a complex piece of legislation, and failure to follow the appropriate requirements and measures can be costly mistakes for employers. If you are an employer and need help in determining your compliance requirements, we recommend that you consult with a lawyer. If you are an employee who has experienced unwanted workplace conduct, we also recommend that you consult with a lawyer to help protect any rights that may be available to you.
Contact Justin W. Anisman
Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.