Workplace Harassment: the Employer’s Duty

Workplace harassment and the employer’s duty to correct it
Photo by Roland Samuel on Unsplash

Occupational health and safety legislation in Ontario protects workers from the risk and harm of harassment at work. Under the Occupational Health and Safety Act (OHSA) employers have a legal duty to guard against and correct workplace harassment no matter how small the team. 

Here are some things to keep in mind regarding workplace safety and the employer’s obligations. 

Harassment Can Go By Many Names

Bullying is harassment. Employees sometimes think that the form of harassment they are facing is less serious than the harassment that OHSA targets. But any euphemism for harassment, like bullying or mocking, doesn’t make it less harmful to workplace health and safety. Even lighthearted bullying can count as harassment under OHSA and the employer will have a duty to prevent and act on it. OHSA says that:

“workplace harassment” means,

(a)  engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or

(b)  workplace sexual harassment; 

“workplace sexual harassment” means,

(a)  engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

(b)  making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Employers have a duty to keep the workplace safe and need to take even minor incidents of harassment seriously.

Harassment Based on Personal Characteristics

Human rights laws also protect workers from harassment that involves characteristics of the employee or someone connected to them that is protected from discriminatory treatment under the Ontario Human Rights Code (the Code). These characteristics are called “protected grounds” and include race, colour, disability, age, creed (religion), sex/pregnancy, sexual orientation, gender identity, and gender expression among others. 

Harassment under the Code is defined as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” Sometimes employees will doubt themselves when trying to figure out what behaviour or comments are inappropriate or unwelcome. Systemic forms of harassment may have become normalized in the workplace. Employers need to be aware of this. 

Often the advice to employees is to take matters into their own hands and tell their harasser that the conduct is unwelcome. If an employee is comfortable doing that then they should. However, telling an employee to address the matter themselves does not let the employer off the hook. There are many reasons why an employee may not be comfortable objecting to the treatment. The burden will always remain with the employer to know the workplace and what it means to make it safe for all its workers to thrive.

The Employer’s Duty to Investigate

Investigating harassment is mandatory. Under OHSA the employer must conduct an investigation appropriate in the circumstances in response to harassment. This serious legal duty can be triggered without a written or formal complaint. This is because the employer is obligated to prevent the toxic work environment that harassment can lead to and because even a single incident of harassment is a health and safety hazard to an individual employee. Employers need to set out details regarding how investigations will be conducted in their anti-harassment policy. Employees should review their workplace policies often but especially to understand what they can expect from a harassment investigation.

Mandatory Anti-Harassment Program 

OHSA requires an anti-harassment program that includes a policy and training. Supervisors and managers are required to have enhanced training so that they know how to respond to inappropriate workplace comments and/or behaviour. Most training programs will satisfy OHSA’s general requirements, however, employers should think about whether their employees and managers need to supplement standard training with something customized for their work environment. Some workplaces have a culture that matured before we understood that lighthearted jokes about “the other” among us create barriers and psychological harm. Other workplaces might have a team too small for self-awareness. They might not recognize any of the “don’ts” in a standard training program as applying to them. 

Get in touch with us if you would like some input on customizing respect in the workplace training for your team to ensure that you are meeting your legal obligations under OHSA and the Code. 

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