By Howard Levitt
Ontario’s legislation to combat sexual violence and harassment is set to become law on Sept. 8, but while it is no doubt a product of good intentions, it comes up short on substance.
Unveiled in March against the lurid backdrop of the CBC’s Jian Ghomeshi scandal, Bill 132 has become top-of-mind for employers concerned about their new obligations, particularly those related to mandatory workplace investigations. Specifically, companies are worried they will now be expected to engage third-party investigators whenever a harassment complaint presents itself.
Fortunately, those concerns are exaggerated.
There will be changes. The law amends six different statues, including the Ontario Occupational Health and Safety Act (OHSA), which will entail some new obligations for employers. Preparation is most certainly required.
But there is no need to panic, throw out established policies and procedures and rush to put third-party workplace investigators on retainer. Despite its ambition, there is nothing groundbreaking in Bill 132. Compliance ought to be quite manageable, particularly for employers who are already attuned to their current obligations vis-à-vis harassment in the workplace.
First, the OHSA’s definition of “workplace harassment” will be revised to explicitly include “sexual harassment;” and sexual harassment itself is being given a detailed and comprehensive definition.
It is an example of form over substance. The current OSHA definition of “workplace harassment” (i.e. “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”) is already more than broad enough to include sexual harassment.
Secondly, the new law will dictate that an investigation “that is appropriate in the circumstances” be conducted into all incidents and complaints of workplace harassment. Of course, this is already a matter of standard practice for many employers, who recognize that ignoring incidents and complaints of harassment is neither good business nor sound human resources practice.
Interpreted properly, the requirement to conduct an investigation encourages reasonableness and proportionality – not overkill. Some complaints will demand exhaustive enquiry; many others will not warrant the same rigour.
And while some legal and HR firms (particularly those who specialize in conducting workplace investigations) might suggest that independent third-party investigations will frequently be what is most “appropriate in the circumstances,” that is emphatically not the case. Indeed, it may virtually never be.
It is true that Bill 132 will give Ministry of Labour inspectors the power to order employers to pay for impartial enquiries by third-party investigators, however there is no reason to believe that such orders will become commonplace.
Instead, it is more reasonable to expect that orders for third party investigations will generally be limited to circumstances in which the employer in question has botched an internal investigation into the matter (or has established a track record of mishandling harassment complaints) and/or the Ministry has some other discernable concern that the employer is incapable of conducting a competent and impartial investigation on its own.
A feature of Bill 132 that some employers may find challenging is the requirement that the results of any harassment investigation be shared with both the complainant and the alleged harasser. The employer must also advise the complainant of what corrective action (if any) is being taken against the alleged harasser.
Obviously, the latter requirement is one that employers will need to handle carefully, because a complainant who feels that the corrective action handed down to an alleged harasser has not been sufficiently “punitive” (or who is otherwise dissatisfied with the outcome of an investigation) will be at liberty to contact the Ministry of Labour and complain – either rightly or wrongly – that the employer has failed to meet its new obligations under the OHSA.
With their investigative and corrective action processes subject to enhanced scrutiny, employers will have a fresh incentive to seek legal advice to help ensure consistency, fairness and legal defensibility of their actions in relation to harassment complaints.
But of course, consistency, fairness and legal defensibility are inherently desirable.
The most significant change imposed by the law relate to new policy, program and training requirements. None of the new rules are particularly onerous, and all of them are quite manageable with the right advice.
Increased awareness and training are, of course, good things. And, to the extent that employers aren’t yet ready for the Bill 132 requirements, now is the time to seek appropriate advice and achieve compliance.
But – in the big picture – combatting sexual harassment requires more than just rolling out showpiece legislation that re-packages and re-affirms existing obligations and best practices.
If the legislature wishes to provide employers with an object lesson on the perils of sexual harassment in the workplace, and what can and should be done to prevent it, a public inquiry into the Ghomeshi scandal at CBC would be a good place to start.