Employer Liability for Sexual Harassment: How to Reduce Legal Risks

A legally compliant harassment policy

Ontario's Occupational Health and Safety Act requires employers with five or more employees to have a written workplace harassment policy that meets specific content requirements defining harassment, establishing a complaint and investigation process, and being reviewed at least annually. A generic or outdated policy that does not meet OHSA's requirements is not a defence it is itself a violation. Employers should also have a separate sexual harassment policy addressing the specific dynamics of that complaint type.

The policy must be posted in the workplace and communicated to all employees. Having a policy that no one has seen or that has not been updated to reflect current OHSA requirements provides little practical or legal protection when a complaint arises.

Mandatory and effective training

Ontario employers are required to provide workplace harassment training not as a one-time onboarding activity but as an ongoing obligation that ensures employees understand what constitutes harassment, how to report it, and what the investigation process looks like. Managers require additional training on how to receive complaints, what not to say or do in the first hours after a complaint is made, and how to avoid creating retaliation liability through informal conduct during and after the complaint process.

Training completed once and not refreshed does not constitute compliance. Employers facing harassment claims who cannot demonstrate regular, documented training are in a significantly weaker position.

A reporting process that employees actually use

A reporting process that exists on paper but that employees do not trust or cannot access does not protect the organization it creates evidence that the culture prevented complaints from being raised. Effective reporting processes provide multiple channels, protect confidentiality to the extent possible, require prompt acknowledgment, and make clear that no retaliation will result from good-faith reporting.

Employees who cannot safely report harassment do not disappear they accumulate documentation, consult lawyers, and pursue formal claims through external forums where the employer has no early opportunity to address the situation. A functional internal process is the most cost-effective harassment risk management tool available.

A proper workplace investigation

Ontario's OHSA requires employers to investigate workplace harassment complaints. The investigation must be conducted by someone with appropriate neutrality a biased investigator, a supervisor with a stake in the outcome, or anyone who may be a witness creates grounds to challenge the findings. The investigation must gather evidence from all relevant parties, document interviews and evidence reviewed, assess credibility where accounts conflict, and reach findings that are supported by the evidence gathered.

A flawed investigation typically creates more legal exposure than no investigation at all. Where the allegation involves a senior leader, where the subject or complainant has legal representation, or where the credibility dispute is significant, using an independent external investigator is strongly advisable.

Appropriate and proportionate corrective action

Where an investigation finds that harassment occurred, the employer must take corrective action and the action must be proportionate to the findings. Inadequate action following a finding of harassment exposes the employer to claims from the complainant that the organization condoned the conduct. Disproportionate action particularly terminating the subject where the findings do not support it creates a wrongful dismissal claim. The appropriate response must be assessed on the specific facts with legal guidance before it is implemented.

Protecting complainants and witnesses from retaliation

Ontario law prohibits retaliation against employees who make harassment complaints in good faith or who participate in investigations. Adverse treatment following a complaint even informal changes to scheduling, assignments, or workplace relationships can constitute a reprisal complaint under the OHSA or the Human Rights Code. Managers who respond to complaints by subtly changing the complainant's working conditions create organizational liability through informal conduct that was never directed or authorized. Training on retaliation prevention is as important as training on harassment recognition.