A workplace harassment complaint may be the last thing an employer would expect, especially if their team works well together. The truth is that workplace harassment continues to be a prevalent issue across Canada. According to a 2022 Canadian survey conducted by Western University, almost 72% of participants reported experiencing some form of harassment or violence in the previous two years, and 65% reported that it happened in their workplace.
The survey showed even higher rates of workplace harassment for certain groups, in particular, 82% of gender-diverse participants and 72% of indigenous participants.
The survey conducted by Western University is one of many – a narrative that these are not one-off cases and have real implications for Canadian employers. When business owners have obligations to ensure their workplace is safe for employees, the first step is to acknowledge that harassment can happen anywhere.
What is considered workplace harassment?
Ontario’s Occupational Health and Safety Act (OHSA) defines workplace harassment as “engaging in a course of vexatious comment or conduct against a worker in a workplace, including virtually through the use of information and communications technology, that is known or ought reasonably to be known to be unwelcome and includes workplace sexual harassment.”
Harassment in the workplace includes a wide range of behaviours, such as:
- Offensive, demeaning, or belittling comments about a person’s work, character, or personal traits
- Aggressive behaviour such as yelling, swearing, or using aggressive language
- Circulating offensive materials such as images, messages, or social media
- Spreading rumours or gossip intended to damage someone’s reputation
- Unwelcome jokes, teasing, or sarcasm that embarrasses or humiliates someone
- Persistent unwelcome criticism that is personal rather than performance-related
- Purposefully excluding a person from meetings, individuals, or work activities intended to undermine their role
- Threats, direct or indirect, about job security, workload, or opportunities
- Unwanted physical contact, such as touching, blocking someone’s path, or invading personal space
- Inappropriate staring
- Sexual harassment or violence
- Bulling or psychological harassment
- Isolating or making fun of a worker because of their identity
- Repeating unwelcome comments about a person’s appearance, background, or personal life
To be considered harassment, the behaviour generally must be repeated as a pattern of offensive behaviour. However, this part of the definition is becoming less emphasized. One incident could be enough to claim harassment depending on the seriousness of the event.
Are employers responsible for preventing and addressing workplace harassment?
Yes. Under Ontario’s Occupational Health and Safety Act (OHSA), employers are obligated address workplace harassment complaints, including complaints from employees in remote work environments.
To prepare for and try to prevent these incidents, employers must have a written workplace violence and harassment policy and program. This includes the following:
- How risks are identified and controlled
- Procedures for addressing when workplace violence or harassment occurs, or is likely to occur
- The investigation process
- A worker’s obligation to report incidents as soon as possible
This must also include that if the alleged harasser is the employer or a manager/supervisor, the employee should report it to another designated individual. This can be an HR representative or another manager.
Employers are also required to investigate complaints within 90 days of being made aware of potential harassment.
In some circumstances, it is easy to dismiss incidents as negligible or deem it ‘workplace drama’. Addressing it may feel like opening a proverbial can of worms and make tensions worse by blowing it out of proportion. However, there are serious implications when employers do not address harassment.
In a 2019 case that was escalated to Ontario’s Superior Court of Justice, the victim of workplace harassment was awarded close to $200,000 in damages. The harassment was found to have been ignored by the employer, causing the situation to worsen.
Furthermore, an employer’s obligation to protect employees does not necessarily end at the workplace door. In a landmark decision by the Administrative Labour Tribunal earlier this year, the case of De Sousa detailed sexual violence that occurred at the worker’s home after they left a company event. The case concluded the employer had failed in its duty to prevent such harassment.
Failing to respond promptly and appropriately to harassment concerns can expose the organization to legal consequences under the OHSA and human rights legislation. When problematic behaviour is ignored or minimized, it can be seen as condoning it. This contributes to a poisoned work environment and undermines the employer’s duty to maintain a psychologically safe workplace. Addressing concerns early and consistently is essential to protecting employees’ wellbeing and meeting legal and organizational responsibilities.
What steps should you take as an employer to investigate workplace harassment?
In Ontario, there are specific guidelines regarding who can conduct an investigation and the proper steps to take. The investigator may be within the organization, such as a manager and/or JHSC representative, or an external designated person can be hired. However, they must not be affiliated with the alleged harasser and be objective throughout the process. If the alleged harasser is the employer, it is highly recommended to conduct the investigation through an external third party.
- Conduct a full, objective, and impartial investigation. The investigator must interview the worker who allegedly experienced harassment (the complainant), present the allegations to the individual accused of the harassment (the respondent), and allow them to respond. They must also interview any and all relevant witnesses. All employees are responsible to cooperate in an investigation.
- Keep things confidential. Details relating to an investigation must remain strictly confidential. Disclosing information can affect all parties, especially the complainant. Sharing the information should be carefully considered and limited to what is reasonably necessary. The privacy of the Respondent must also be protected, especially before the investigation is complete. However, employers are required to conduct a fair, objective, and impartial process, which means that some disclosure is unavoidable. The Respondent must be given enough information to understand the allegations, know who made them, and provide their response. This ensures the investigation is fair and defensible.
- Keep accurate documentation. All documents regarding complaints and investigations, including interview transcripts and/or recordings, notes, statements, and any other documents should be retained and stored in a secure location.
- Report the results of the investigation. At the end of the investigation, the worker allegedly experiencing harassment and the alleged harasser (if they are a worker of the employer) must both be informed of the investigation’s results, either verbally or in writing. This includes a summary of the findings of the investigation and any corrective action that has been or will be taken. The OHSA requires that these results are communicated to both parties within 10 calendar days of the investigation being concluded.
Not sure how to move forward?
Investigations into workplace violence and harassment are complex and must be handled with objective, professional oversight. Investigations done internally may be escalated if they are not handled properly. In some escalated cases, employers can be ordered by the Ministry of Labour or the Human Rights Tribunal to conduct an investigation through an independent third-party.
Our HR Partners are experienced in conducting thorough investigations on behalf of our clients. If you are unsure how to navigate a particular issue, have questions, or would like to learn more about or services, contact us today.
References
https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1343/2019onsc1343.html
https://citoyens.soquij.qc.ca/php/decision.php?ID=8E18C4F36E8261F68889D81168ACF9FF
https://www.ontario.ca/page/code-practice-address-workplace-harassment