sexual harassment in the workplace, employment lawyer toronto

How To Deal With Sexual Harassment In The Workplace

Sexual harassment in the workplace is an issue that employers should not leave unaddressed. According to Ontario’s Occupational Health and Safety Act (OHSA), sexual harassment is considered a form of discrimination based on sex. The definition found in the OHRC outlines that an individual sexually harasses another individual when:

  1. 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 be known to be unwelcome; or
  2. Making a sexual solicitation or advance where the person making it 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 the solicitation or advance is unwelcome.

A common misconception is that sexual harassment in the workplace has to be some form of egregious, overt act. However, it is important to understand that what many may consider to be playful or minor actions — such as asking for hugs or unnecessarily brushing against someone — can nonetheless qualify as sexual harassment under the Code. Nuanced acts, such as gender-based insults, can also be considered sexual harassment within the workplace.

How Should Employers Address Sexual Harassment In The Workplace?

Both men and women, regardless of industry, experience level or position, may experience sexual harassment in the workplace. As employers, it is crucial to take allegations seriously. It is the employers’ duty to ensure their workplace is safe and free of preventable risks, including sexual harassment. Where a risk arises, it is the employer’s duty to address the situation.

A common but effective way to prevent sexual harassment in the workplace is through the implementation of anti-sexual harassment training and policies. For example, employers can hold interactive workshops that explain the workplace policies, overview on Human Rights, and how to report incidents either during employee onboarding or at annual training sessions.

Employers must also have their anti-sexual harassment policies posted throughout the workplace. Constant visibility of the sexual harassment policies should reinforce and remind staff about the Employer’s policies. Moreover, increasing the policy’s visibility will reiterate how the employer will investigate allegations of sexual misconduct; emphasize employees’ responsibilities; and remind employees about their rights and resources.

What Can Employees Do To Address The Issue?

The employer’s duty to investigate is triggered as soon as an incident of alleged sexual harassment is brought to the employer’s attention. Employers should not wait for a formal complaint to be made. If an employer notices unusual behaviour or simply hears about an incident “through the grapevine,” that should be enough to trigger their duty and commence an investigation.

Employers are expected to conduct a thorough and reasonable workplace investigation with an investigator who is neutral and removed from the situation. This ensures a fair and unbiased investigation. It is crucial to carry out the investigation with tact and discretion, as sexual harassment incidents can be traumatic for employees and can divide a workplace.

Depending on the size of the company, some employers may choose to conduct an investigation with an in-house investigator, while other smaller companies may choose to bring in an outside investigator.

In extreme situations, which may be caught by the Canadian Criminal Code, an employer should look into referring the incident to police and requesting their involvement. This will ensure the safety of all within and outside of the workplace.

What Happens If Sexual Harassment Is Left Unaddressed?

There are a myriad of consequences that can materialize from:

  1. not having an effective anti-sexual harassment policy;
  2. failing to address an allegation in a timely and effective manner; or
  3. simply ignoring the issue.

Employers who fail to address allegations of sexual harassment can potentially find themselves before a hearing at the Ontario Human Rights Tribunal or before the courts with substantial damages being sought. Allegations of this nature can bring negative press and reputational harm to an employer’s brand as well. Additionally, unresolved issues could lead to charges under the criminal code.

Contact Us

If you are an employer in need of a workplace investigation, or an employee who requires assistance with a sexual harassment claim, our team of experienced legal professionals can help. Contact us by phone toll-free at 1 (866)508-2548 or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions. If you are looking for legal support for HR, visit our HR Legal Support page.