“Bob is harassing me.”
Your spidey senses should be tingling. Because some kind of investigation should be taking place soon. If not, consider what happened when an employee at CBC complained about Jian Ghomeshi and was ignored or when an employee at the TO2015 Pan American Games complained about David Peterson and her complaint was allegedly not taken seriously.
Immediately after you are told about Bob the alleged harasser you should determine whether the person is alleging workplace harassment.
Under the Ontario Human Rights Code (the Code), harassment on any of the 16 prohibited grounds (like sex and race) is defined as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
Effective Sept. 8, 2016, workplace harassment under the Occupational Health and Safety Act (the OHSA) will be defined as (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.
An employee who has been harassed within the meaning of the Code can obtain damages from her employer from the Ontario Human Rights Tribunal or from the Ontario courts. An employee who complains he has been harassed under the OHSA cannot claim damages.
Sexual harassment: a special kind of harassment
For reasons that I do not understand, the Ontario government has decreed that effective Sept. 8, 2016, an employee who has been sexually harassed at work can file a complaint under the Code or under OHSA. Accordingly, an employee who has been sexually harassed will thereafter be able to commence legal proceedings in at least three legal fora; namely:
1. An application under the Code
The Code prohibits sexual harassment in employment and a person can file an application under the Code seeking damages. In a 2015 decision, an adjudicator under the Code awarded a former employee who had been sexually harassed $150,000 in general damages.
2. A complaint under the OHSA
An employee can file a complaint and the employer must investigate the complaint and inform the person of the results of the investigation. The only obligation is to investigate and report back to the person.
3. An action in Ontario’s Superior Court
An employee can sue for damages for a breach of the Code and/or for damages for the tort of sexual assault. In a 2015 decision, a judge awarded a former employee over $300,000 damages in connection with sexual harassment/assault in the workplace.
Lessons to be learned
1. Make sure you have a written policy to investigate workplace harassment complaints in place by Sept. 8, 2016. For information about our fixed fee service, click here.
2. Sexual harassment complaints can be more legally complicated than other kinds of harassment complaints.
3. Investigate all workplace harassment complaints quickly and tailor the investigation to the circumstances of the case. This includes: deciding whether to use an internal or external investigator; whether to permit employees to bring legal representation to meetings; whether the investigator can make recommendations; whether to write a report; whether to release a formal report (if one is prepared) to the parties, etc. Not all investigations need to be treated the same.
For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected].