News of many cases of alleged sexual harassment in the last few weeks has led employers to ask about their legal liability and what steps they can take to avoid such scandals. Social media feeds are filled with horror stories of sexual harassment being allowed to continue for years without management taking any corrective action. In the wake of these allegations, it is useful to review employer obligations.
Too often, employers permit harassers to engage in conduct because they are considered to be too senior or too powerful to reprimand and a culture that condones (or at least turns a blind eye to) inappropriate behaviour is then allowed to develop within the organization.
Serious practical questions must be addressed for the employees — mostly women — who endure the inappropriate comments, the reprisal for refusing sexual advances, the groping, and the leering. How can this conduct to be stopped? How can perpetrators be punished without an organization facing legal liability and serious reputational damage?
Human rights legislation is one way such matters are addressed, but the system has its limits. It is a complaint-driven, after-the-fact system. It does not seem to be deterring misconduct.
The more challenging project will be to change the workplace cultures which condone such activity.
In Ontario, Bill 132 recently amended the Occupational Health and Safety Act to address the growing problem of sexual harassment in the workplace. The Act requires employers to investigate complaints of workplace harassment and to develop related policies and programs. Key aspects of the amendments include:
• the addition of a definition of “workplace sexual harassment”;
• a new requirement that the workplace harassment program be developed and maintained in consultation with the Joint Health and Safety Committee or a health and safety representative;
• a requirement to conduct an investigation that is “appropriate in the circumstances”;
• confidentiality and reporting obligations relating to workplace harassment investigations; and
• a new power of the Ministry of Labour to order an independent workplace harassment investigation at the employer’s expense.
An important requirement is the obligation to investigate. Conducting investigations can be complicated and costly. Employers will need to consider:
1. Should the investigation be conducted internally by HR? If so, how will confidentiality be maintained?
2. Should the employee who has been accused be placed on a leave? Should the leave be paid or unpaid?
3. What other disciplinary measures should be in place? What right does the employee have?
4. What will be communicated to the company at large about the leave and the employee?
5. Employers also need to consider whether the investigation report and all related documents will be privileged?
While there is a clear legal framework for addressing sexual harassment at work, most employers understand there is no policy or law which can eliminate such behaviour. Certainly, recognition of the legal obligations and the associated penalties may help an organization prevent some of the offending behaviour. Equally important, however, is the development of a culture which fosters respect and accountability. It is no longer acceptable or legal for employers to turn a blind eye and look the other way. Bill 132 makes accountability a key part of an employers’ obligations in helping to deter sexual harassment at work.