Enhancing the existing sexual harassment framework in Ontario’s Human Rights Code may be more prudent than creating a new, parallel system under the Occupational Health and Safety Act (OHSA), as a provincial action plan has set out to do, says Toronto employment lawyer Doug MacLeod.
The plan, spearheaded by Premier Kathleen Wynne and titled It’s Never Okay, was drafted in response to high-profile incidents that remain under investigation, including sexual assault allegations against Jian Ghomeshi. The $41-million strategy is complex and targets everywhere from university campuses to workplaces and hospital rooms.
Wynne has pledged legislation this fall after further consultation.
The plan promises legislation that will add a definition of sexual harassment to OHSA, setting out “explicit requirements for employers to investigate and address workplace harassment, including sexual harassment complaints in the workplace, and include an obligation for employers to make every reasonable effort to protect workers from harassment, including sexual harassment, in the workplace.”
But MacLeod says such oversight already exists under the provincial Human Rights Code.
“Adjudicators working under the Human Rights Code possess a lot of expertise in the area and generally have a very well-honed radar for discrimination,” he says. “Right now there are many sexual harassment cases being litigated under the code, and although sexual harassment continues to take place in workplaces, I think most people are aware that there is a place to go if you’ve been harassed and you want to complain. I think it may be better to tweak the existing enforcement system as opposed to creating a parallel system that is staffed with people who aren’t currently trained in the area.”
Sexual harassment represents a broad range of activities, which are difficult to capture within one definition, says MacLeod, principal at MacLeod Law Firm.
“It can be leering all the way up to physical touching or groping,” he says. “It’s kind of an amorphous concept and it’s really hard to come up with a definition. That’s why you don’t find a definition in the Ontario Human Rights Code. Basically when sexually harassment is claimed an adjudicator will look at the context in which the alleged harassment took place, the relationship between the people involved, whether it’s alleged to have happened over a period of time, the nature of the workplace … it’s a very fact specific and nuanced exercise.”
While details of the proposed changes to the occupational health and safety legislation are unknown, MacLeod says there’s potential for drastic impact on employers and employees.
“Let’s say the new law requires employers to change workplace harassment policies to specifically include sexual harassment, or that there has to be specific reference to sexual harassment in their complaint process – does that mean every employer in the province with more than six employees is required to revise their current policies and complaint processes?”
Depending on the scope of the legislation, MacLeod says it could also mean employers who completed mandatory health and safety training last summer will have to do so again.
“I have my doubts about whether small employers would actually do that,” he says. “I just don’t know if the action plan will have the desired effect.”
MacLeod says he fully supports the action plan’s aim to keep Ontario workplaces safe from sexual harassment and violence, but wonders if OHSA is the right place to start.
“I do think more light needs to be shone on these issues, but I think it can be done by making some pretty minor changes to the Human Rights Code.”