Since 2010 there has been confusion around the term “workplace harassment” in Ontario.
Until that time, workplace harassment was generally limited to sexual, racial and 14 other types of harassment under the Ontario Human Rights Code (Code). For this type of complaint, an employee could file an internal harassment complaint (if the employer had a no-discrimination policy) and/or file a complaint against the employer with the Ontario Human Rights Tribunal.
In 2010, the Occupational Health & Safety Act (OHSA) was amended. Now an employee can file a complaint with her employer if she believes she has been harassed. “Workplace harassment” means 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.
What is an employer to do with harassment complaints?
- An employer who employs six or more employees must prepare a policy with respect to workplace harassment, develop and maintain a program to implement the policy and post it in the workplace. This program must set out how the employer will investigate and deal with incidents and complaints of workplace harassment.
- If an employee claims she has been “harassed”, take the complaint seriously and investigate it.
- At the onset, determine whether the employee is claiming harassment under the Code, or under OHSA. Then, follow the applicable internal complaint process.
- Decide whether to conduct the investigation internally or to retain an outside workplace investigator.
We also recommend that most employers implement a human rights policy which includes an internal complaint process for sexual and other forms of discriminatory harassment. This latter policy however, is not required by law.
Employers should concern themselves with the safety and security of their employees. Otherwise, a toxic workplace can develop where employees become unproductive and/or sick. All employers (except very small employers) should therefore have a workplace harassment policy under OHSA, and a no-discrimination policy to address potential Code violations. We believe implementing these policies will increase the chance that harassment will be identified and addressed quickly and reduce the chance that the employee will file an external complaint.