Canadian Employment Law Today

Legislative reform regarding sexual harassment – But is it enough? Ontario and other jurisdictions are bringing in more protection for victims of workplace sexual harassment, but will it encourage them to come forward? BY SUNIRA CHAUDHRI IN THE post-Ghomeshi world we now live in, one must wonder how the outcome of the sexual assault case involving former CBC employees Jian Ghomeshi and Kathryn Borel will impact the reporting of sexual ha- rassment in workplaces nationwide. Ghomeshi had his sexual assault charge withdrawn after signing a peace bond on May 11, 2016, and read out an apology saying, in part, the following: "I now recognize that I crossed boundar- ies inappropriately. A workplace should not have any sexualized tone. I failed to under- stand how my words and actions would put a coworker who was younger than me, and in a junior position to mine, in an uncomfortable place." In a statement outside the courthouse, Borel said, in part: "ere are at least three documented incidents of physical touching. is includes the one charge he just apolo- gized for. When he came up behind me while I was standing near my desk, put his hands on my hips and rammed his pelvis against my backside over and over simulating sexual in- tercourse." Ghomeshi, in his apology, acknowledged a key issue that many tie to sexual harassment in the workplace: power imbalance. When a victim of sexual harassment is in a subordi- nate position to his or her harasser, the likeli- hood of reporting such conduct is, in the view of many, less likely. e Ontario Government has made the is- sue of sexual violence and harassment in the workplace a key action item by introducing Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harass- ment), 2016, which received royal assent on March 8, 2016. is act has created new duties and obligations for Ontario employers, land- lords and educational institutions to meet in order to better protect individuals from sex- ual violence and harassment. Amendments to the Occupational Health and Safety Act (OHSA) will be made as a result of this new legislation and requires employers to take ac- tion by Sept. 8, 2016. Bill 132 expands the cur- rent protections employees have with respect to workplace violence under Bill 168. Bill 168 came into force in 2010 to pro- tect workers from workplace violence and harassment by creating obligations for em- ployers to create policies and programs to deal with these issues. Bill 132 supercharges the employer's obligation to protect workers, specifically from sexual harassment. Bill 132 extends the definition of "workplace harass- ment" in the OHSA to include "workplace sexual harassment" which is defined as: • 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 unwel- come; or • 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. Like many employment lawyers I have seen the spectrum of sexual harassment com- plaints. ey have various manifestations from the seemingly innocuous email to the extremely brazen grope in the office board- room. Often workplace sexual harassment is not witnessed by anyone other than the two parties involved, making it incredibly difficult to prevent, manage and investigate. To counter some of the effects of sexual harassment, Bill 132 requires employers to ensure their workplace harassment programs are in writing and are expanded to: • Include measures for reporting incidents of workplace harassment to a person other than the employer/supervisor if the em- ployer/supervisor is the alleged harasser • Detail how incidents or complaints of workplace harassment will be investigated and handled • Detail how information about an incident or complaint (including identifying infor- mation) of workplace harassment will not be disclosed unless disclosure is necessary for the investigation or corrective action, or if required by law • Detail how the alleged victim and harasser (if a worker) will be informed of the inves- tigation results and any corrective action arising out of the investigation. Employers will have additional obligations to conduct an investigation into complaints of workplace harassment, that the alleged victim and harasser are informed of the results and of any corrective action, that the employer's workplace harassment program is reviewed at least annually and that employees receive training on the employer's program. Sexual harassment damages increasing In Ontario, as well as other jurisdictions, the Human Rights Code is another protective piece of legislation under which employees have a right to be free from sexual harass- ment and sexual advances in the workplace. Until very recently, damages awarded under this statutory regime were historically low. e May 2015 Ontario Human Rights Tri- bunal decision of T. (O.P.) v. Presteve Foods Ltd. set a high benchmark for damages as a result of sexual solicitations, advances and sexual harassment that created a sexually poisoned work environment for the two ap- plicants, contrary to their rights under the Human Rights Code. e tribunal awarded $150,000 and $50,000 to the applicants, re- spectively, in damages for injury to dignity, feelings and self respect. e decision in Presteve lends some seri- ous support to the idea that victims of sexual harassment should come forward, can be found to be credible and obtain significant damages for their mistreatment. at said, the fear of victim blaming still looms and legal protection is not absolute. is is especially Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends ABOUT THE AUTHOR SUNIRA CHAUDHRI Sunira Chaudhri is a partner with Levitt and Grosman LLP in Toronto, practising labour and employment law. She can be reached at (416) 597-3373 or schaudhri@levittgrosman.com VICTIMS on page 7 »

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