Laws intended to change social behaviour are sometimes referred to as “social engineering” legislation. The obvious example is the Human Rights Code, which prohibits discrimination on protected grounds and requires employers to accommodate many of the personal challenges employees face. Some employers feel governments have gone too far – that they are being legislated and regulated well beyond any reasonable level. The latest example, they say, is the Ontario government’s proposed Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015 (“the Act”). But when it is scrutinized closely, the Act may not impose as much change as you might think.
If passed into law in its current form, the Act will amend the Occupational Health and Safety Act (“the OHSA”) and employers will be required to:
- expand the definition of workplace harassment to include sexual harassment
- develop policies and procedures to prevent sexual harassment in the workplace
- investigate and address allegations of workplace harassment, including sexual harassment
- make every reasonable effort to protect workers from harassment, including sexual harassment, in the workplace
If reading this list gives you a sense of déjà vu, it’s probably because you’re a conscientious employer who knows that, in practice, you should already be doing all these things. By specifically adding the legislated obligation to have policies, procedures and formal investigations related to sexual harassment, Ontario would arguably do nothing more than codify existing “best practices”, given employers’ obligations under the Human Rights Code.
That said, there are a couple of new provisions – one which would impose a new potential burden on employers and one which would help them.
The new potential burden is the proposed expansion of the role of inspectors under the OHSA, who would be given the power to order investigations and corresponding reports into allegations of workplace harassment. These investigations/reports would be completed at the employer’s expense.
The new benefit to employers is a proposed provision to be added to the OHSA clarifying that “a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.” This would be of great assistance in those situations where an employee alleges that a bad performance evaluation constitutes harassment.
So all in all, the new Act may not be as much of an imposition as you might think, particularly if you’re a conscientious employer with good policies, procedures and an awareness of the importance of dealing with issues related to sexual harassment in the workplace. On the other hand, if a review of your policies/procedures shows some gaps, now might be a good time to consider updating them.