Implementing Ontario Bill 132 to Stop Sexual Harassment

This year Ontario strengthened its position on workplace sexual harassment by passing Ontario Bill 132. Known as the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), Bill 132 increased employer obligations to ensure Ontario workers work “without the threat and experience of sexual violence, sexual harassment, domestic violence and other forms of abuse.” It has been in effect since September 8, 2016. 

The Legal Changes

Bill 132 amended Ontario’s Occupational Health and Safety Act (OHSA), a law that generally requires employers with one or more employees to maintain safe workplaces. The new law changed “workplace harassment” to expressly include “workplace sexual harassment.” Under the OHSA, workplace sexual harassment includes both unwelcome sexual conduct by someone “in a position to confer, grant or deny a benefit or advancement” (roughly similar to “quid pro quo” sexual harassment in the United States) or unwelcome and “vexatious comment or conduct against a worker . . . because of [their] sex, sexual orientation, gender identity or gender expression.” In the United States, the state of California similarly codified gender identity and gender expression, among other regulatory clarifications.

In addition to expanding the definition of harassment, Bill 132 also obligates employers to include within their workplace harassment program, and consequently follow, elements such as:

• Who investigates if the alleged harasser is the employer or supervisor
• How confidentiality will be maintained during investigations
• Providing written results of the investigation to the complainant and to the alleged harasser (if under the employer’s direction)
• Conducting an appropriate investigation into a workplace harassment complaint, and
• Reviewing their program at least annually to ensure that the employer adequately implements the workplace harassment policy
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Implementation

Implementing a workplace harassment program means more than complying with the black letter law; a human element is involved. Countless news stories followed the National Park Service failing to remedy sexual harassment amidst allegations of a supervisor engaging in sexual harassment. Behind the scandal were multiple employees who were initially afraid to report the supervisor’s conduct to their employer. The fear is not misplaced as employers have been known to fire victims of sexual harassment before conducting a complete and effective investigation.

Workplace harassment also damages employee mental health. In her article “Understanding and employing Bill 132 in the workplace,” Canadian lawyer Maria Gergin underscores why employers should address mental health issues in the workplace as part of their new programs. “Statistics support the idea that incidents of workplace harassment – sexual and otherwise – are one of the most significant risks to employee mental health.” Surveys also indicate that employees care more about mental health issues in the workplace than employers.

While Bill 132 creates new legal obligations for employers on paper, actual implementation among everyday employees is mission critical. Training employees about topics like inclusive language, discrimination, and bias through engagement can help employers implement an effective workplace harassment program that prevents issues before they arise. Moreover, OHSA requires training.

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