Sexual Misconduct and Harassment at Work

Donich Law has experience prosecuting, investigating, and defending allegations of sexual harassment or other misconduct at private workplaces throughout Ontario. The Firm has worked with various institutions, university and college campuses, as well as private businesses to investigate potential claims of sexual harassment within the workplace. We also have experience defending individuals accused of engaging in such conduct in the workplace.

When an allegation of sexual harassment is made within the workplace, the employer will typically launch an investigation into the matter. This is important not only for the complainant, but also for the employer itself. An employer who receives a report about possible workplace harassment and fails to investigate could find themselves in trouble with the Ministry of Labour.

What is Workplace Sexual Harassment/Misconduct?

Workplace sexual harassment or sexual misconduct can take on many different forms. Generally, it involves an individual in a workplace making inappropriate, sexually based comments to another individual inside the workplace. It could also include inappropriate conduct or gestures. This could occur between colleagues, between management, or between management and a lower-level employee. Sexual harassment can be repeated, or it can be one singular comment or incident.

In Ontario, both the Human Rights Code and the Occupational Health and Safety Act (OHSA) address sexual harassment and sexual misconduct in the workplace. Specifically, the Human Rights Code ensures that all employees in Ontario are free from sexual harassment in the workplace. This means that all individuals are free from harassment based on their sex, sexual orientation, gender expression, or gender identity.

Further, the OHSA defines sexual harassment in the workplace as any vexatious comments or conduct against another worker in a workplace because of their sex, gender identity, gender expression or sexual orientation, where the comment or conduct is known, or reasonably ought to be known to cause offence.

Workplace sexual harassment can also include making an advance, or soliciting another individual in the workplace where the individual making the advance or solicitation is in a position to confer, grant or deny advancement, or some other benefit to the individual they are making the advancement on, or soliciting, where the individual making the solicitation is aware or ought to be aware that their behaviour is unwelcome.

For example, a manager who is in charge or promotions within the office asks a colleague on a date, knowing the colleague is up for a promotion. The worker is now in a position where they may lose the promotion if they do not go on the date.

What if I did not Intend to Harass Anyone?

It is important to note that the intention of the individual making the comment or engaging in conduct that could be considered sexual harassment is not relevant. It does not matter that the individual did not intend to cause harm or discomfort. If the individuals’ comments or conduct lead to the other individual feeling harassed, it is likely that sexual harassment has occurred.

It is also not necessary that the alleged harasser actually be aware that their conduct was unwanted. For example, a manager who makes comments about his staff’s body ought to be aware that such comments are inappropriate and unwanted. It is not necessary that the manager was actually told the behaviour is unwanted. When determining what behaviour is unwelcome, or ought to be known to be unwelcome, a common sense approach will be used.

Example

Person A, a man, is a manager at a large company. Person B, a woman, is the assistant manager to Person A. One day person A is having a phone conversation with a female employee in the office and becomes upset. Person B is in the room at the time. Upon hanging up the phone, person A comments that the individual they were just speaking with on the phone is “such a bitch.” A similar comment is made by person A a few days later. Person B becomes uncomfortable and reports person A to HR. Person A’s comments, referring to a female colleague as a “bitch” can be considered workplace sexual harassment. Since “bitch” is considered a gendered word, person A has made vexatious comments about other workers based on their sex. Even though person A did not intend to offend person B, and was not referring to person B, person A is nonetheless guilty of workplace sexual harassment.

Are Employers Obligated to Investigate Workplace Sexual Harassment/Misconduct?

Yes. The Occupational Health and Safety Act requires all employers within Ontario to adequately investigate claims of workplace sexual harassment or misconduct. Since 2009, the Ontario government has required all employers to prepare a policy on both workplace violence and workplace sexual harassment. These policies must be reviewed regularly and updated when necessary. Such policies must be in writing and available to all employees, including being posted in a well visible location within the workplace. Where the employer has five employees or less, the policy is not required to be posted within the workplace, unless the employer is ordered otherwise by an inspector.

As outlined by the OHSA, an employer’s workplace sexual harassment policy must include a procedure for reporting workplace sexual harassment to either the employer or the employee’s supervisor The policy must also contain a procedure for reporting an incident of workplace sexual harassment to someone other than the employer or supervisor. This is important where the alleged harasser is the employer’s manager or supervisor, or the employer themselves.

The policy must outline how incidents of workplace sexual harassment will be investigated and handled within the company. It must indicate how the personal information of the complainant is to be handled and kept confidential throughout the investigation process. The policy must also outline how the complainant and alleged harasser will be notified of the outcome of the workplace investigation.

Do Employers have a Duty to Protect Employees from Workplace Harassment?

Yes. The Occupational Health and Safety Act requires all employers in Ontario to protect their employees from workplace harassment. Employers must ensure that a thorough investigation is launched, in accordance with their workplace sexual harassment policy, into any and all complaints of workplace sexual harassment. Both the complainant and the alleged harasser must be informed in writing of the outcome of the workplace investigation. Both parties must also be informed in writing regarding any corrective action the employer has taken or plans on taking.

Employers can create a safe working environment, free of workplace harassment, by keeping an up to date policy on workplace sexual harassment and making that policy known to all employees. If and when a complaint regarding workplace sexual harassment is received, employers protect their employees by launching a full investigation into the matter, including taking action against any employee who is found to have engaged in workplace sexual harassment.

How are Workplace Investigations Carried out?

As noted above, employers throughout Ontario are obligated by law to have policies in place regarding workplace sexual harassment. Such policies will outline the processes and procedures for reporting incidents of workplace sexual harassment to the employer, or to another individual within the organization. This means that investigations may be carried out differently by different employers.

Typically, once an employer receives a complaint regarding possible workplace harassment, they will appoint someone to investigate further. This could be someone within the organization, like a human resources manager, or someone outside of the organization. It is common for employers to hire an independent investigator to look into the complaint. This will ensure the investigation is carried out in a fair and impartial manner. Third parties carrying out workplace investigations for an employer must be licensed and insured to do so. Typically, a private investigator or lawyer will be hired.

The investigator will collect information related to the alleged complaint. This may include business documents, emails or text messages, or anything else that may be relevant to the complaint. The investigator will also likely interview people who may have knowledge of the issue including the complainant, the accused employee, and any other witnesses.

Once the investigator has completed their investigation, they will typically compile a report regarding the outcome of the investigation, including an opinion on whether the allegations are true. This report will be provided to the employer. As noted above, the employer will then have an obligation to provide a copy of the decision in writing to both the complainant and alleged harasser.

How are Workplace Sexual Violence Policies Enforced?

When an employer receives a complaint regarding potential workplace sexual harassment from one of their employees, they are legally obligated to investigate. Additionally, employers are obligated to protect their employees from workplace sexual harassment. While the Occupational Health and Safety Act does not outline specific enforcement measures, it does require employers to have a workplace sexual harassment policy in place at all times. Such a policy should outline potential enforcement procedures that may be utilized if an employee is found to have committed workplace sexual harassment.

Common modes of enforcement include separating the employees and moving the alleged harasser to another department when necessary and possible. Where an employee has found to have engaged in workplace sexual harassment, many employers will terminate the employee for cause. In other situations, the offending employee may be suspended or placed on leave for a period of time. While the methods used to enforce a workplace sexual violence policy may differ, it is important to remember that employers are legally obligated to enforce such a policy. Where an employer fails to do so, they could be reported to the Ministry of Labour who may investigate the employer’s non-compliance with the OHSA. An employer who is found to have violated the OHSA may face hefty penalties including large fines.