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All talk of "workplace culture" eventually stumbles upon the gnarly topic of sexual harassment – whether it's happening, where, and what to do about it. And it is not difficult to see why. This was the year of class action lawsuits against the RCMP, and Jian Ghomeshi and the CBC. All have contributed to a heightened collective awareness of the fact that, yes, sexual harassment is a Canadian workplace fact, and, yes, something still needs to be done about it.
Earlier this year, the Ontario government enacted statutory amendments which expand employers' duties to investigate and address incidents of workplace sexual harassment. As of Sept. 8, when the amendments came into force, Ontario employers have even more reason to provide sensitivity training and listen in on watercooler conversations.
To be clear, Ontario's Occupational Health and Safety Act (OHSA) has obligated Ontario employers to have workplace harassment policies and procedures in place as part of their general duty to provide employees with a safe workplace for years. But the new amendments, brought under Bill 132, The Sexual Violence and Harassment Action Plan Act, have built upon these existing obligations to require employers to specifically address sexual harassment.
So what exactly has changed?
For one, the OHSA will contain new definitions of "workplace harassment" and "workplace sexual harassment." As an employment lawyer often asked to determine whether employee conduct rises to the level of requiring an investigation under the OHSA, I'll say that clear definitions always help.
There are also a number of requirements relating to the manner in which employers must investigate workplace sexual harassment allegations. One is that the employee who has experienced the workplace sexual harassment and the person who perpetrated the act must both be informed in writing of the results of the employer's investigation into the incident. This also includes any corrective action that the employer has chosen to take or will take as a result of the investigation. As a practical aside, this latter obligation will require reconciliation with the fact than many employers have internal policies that prohibit disclosing details of the corrective action the employer has chosen following such investigations.
Also notable is the threatened penalty that now exists for employers who are unwilling or fail to conduct investigations into workplace harassment complaints. The new amendments now allow the Ministry of Labour to compel an employer to hire an impartial investigator selected by the Ministry to conduct an investigation in the employer's workplace and produce a report with respect to the investigation – all at the employer's expense.
Perhaps recognizing the potential floodgates effect of some of these new obligations, the amendments also contain a new employer defence to unfounded complaints of workplace harassment. The amendments provide that "reasonable action" taken by an employer relating to the management and direction of an employee or the workplace does not constitute workplace harassment. What constitutes "reasonable action" will still need to be determined on a case by case basis, looking at specific circumstances of each case. But the new defence will help address frivolous workplace harassment complaints more efficiently – the most common of which is the harassment complaint against the supervisor who just delivered a less than glowing performance review. The OHSA workplace harassment provisions were never intended to be used for such grievances and the new amendments reinforce this.
Overall, the OHSA changes will mean that existing workplace harassment policies will have to be amended and reporting and investigation procedures revised. And, for most employers, that will be easy enough.
But the spirit of the workplace harassment amendments will be lost unless they are understood and integrated as a part of a larger effort to promote workplace psychological health. Statistics support the idea that incidents of workplace harassment – sexual and otherwise – are one of the most significant risks to employee mental health.
Interestingly, an extensive workplace mental health survey conducted by the Conference Board of Canada earlier this year found that only 39 per cent of Canadian employers have a mental health strategy in place, and that one-third of Canadian employers don't believe mental health is an issue in their workplace at all.
Employee surveys present a different picture. The Mental Health Commission of Canada reports that more than 70 per cent of Canadian employees are concerned about the psychological health and safety of their workplace. Not surprisingly, more than 30 per cent of short- and long-term disability claims in Canada are attributed to mental health problems and illnesses.
These numbers are too telling to ignore, from a workplace culture, operational and bottom line perspective. Simply put, as we've seen in the news this past year, an organization which does not promote, or at least consider, the psychological health and safety of its employees leaves itself open to inevitable reputational, legal and financial risk.
Organizations which have successfully implemented a mental health strategy have not done so by expecting to carve out extra time, people or money for it (though some have). Rather, they have successfully woven mental health-related initiatives into their existing goals, teams and processes.
I would suggest that as employers revise workplace harassment policies and processes for compliance with the new amendments, they also seize the opportunity to conduct a holistic assessment of psychological health risks in their respective workplace. And this will be easier than it might seem, because those risks will be apparent from data all employers already have – rates of absenteeism, benefit plan usage, grievances and complaints, harassment and human rights claims, and employee input surveys. This data is the litmus test for the psychological health of every employer's workplace. Studying it will provide an organization with information it needs to take the first step in putting together a tailored mental health strategy to address the unique psychological risks that exist in its workplace. And this is well worth the effort. As the latest legislative workplace harassment amendments suggest, the employer standard of care relating to the prevention of workplace sexual harassment is steadily and undeniably being raised.
Maria Gergin is an associate in the Toronto office of Borden Ladner Gervais LLP. She practises labour and employment law and is a certified Canadian Mental Health Association Psychological Health and Safety Advisor.