Harassment in the workplace has been a hot topic within the media as of late. Significant allegations have arisen in Hollywood and elsewhere regarding abuse suffered by actors and vulnerable workers that have started a debate regarding the abuse of power that often occurs within the workplace.
Workplace harassment is not new. It is an unfortunate reality that many employees are unable to protect themselves from harassment in fear of losing their jobs. Despite this, it is nevertheless important for employees to be able to identify workplace harassment and take steps to improve their negative workplace situation.
Workplace Harassment Defined
Under the Occupational Health and Safety Act, RSO 1990, c. O.1 (“OHSA”), workplace harassment and workplace sexual harassment is defined broadly:
workplace harassment” means,
(a)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, or
(b)workplace sexual harassment
“workplace sexual harassment” means,
(a)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 to be known to be unwelcome, or
(b)making a sexual solicitation or advance where the person making the solicitation or advance 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 that the solicitation or advance is unwelcome;
Though the definition for harassment is broad, any reasonable actions taken by an employer or supervisor in relating to the management and direction of workers is not harassment. Differences in opinions or minor disagreements between co-workers will also not likely be harassment under the law.
Employees: Create A Trail
Ultimately, the first step to put an end to harassment is usually on the employee. It is imperative for employees experiencing harassment to create a trail, most preferably in writing than not. An employer must be made aware of the harassment to effectively act on a complaint or incident of harassment.
If an employee is looking to bring a harassment claim in court, there must be a strong evidentiary basis for the claim. Generally speaking, in order for a claim of harassment to succeed, the employee must show that the alleged harassment:
1)occurred more than once
2)that the harasser was told that the conduct was not welcome, or should have known it was not; and
3)the conduct has a physical or mental effect on the victim stemming past the interaction.
To demonstrate these factors, an employee should report harassment to their employer, as well as keep a record (journal, diary) of their own. Not doing so can create a risky he-said she-said situation and leave vulnerable workers without justice for harm they have suffered.
The Employer’s Duty
An employer also has a role in preventing harassment in the workplace or risk significant damages if it is found that the employer’s direct conduct or negligence played a part in continuing harassment. In O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII), the Human Rights Tribunal of Ontario awarded $150,000.00 in damages against the employer for the sexual harassment the applicants were subjected to while on the job, for which the employer did not act to prevent.
All harassment claims must be taken seriously and investigated. If an employer is aware of potential harassment but does not investigate the complaint or conducts a poor investigation, it can still be liable for damages stemming from workplace harassment.
Pursuant to the section 32.0.7 of the OHSA, an employer’s duty is to conduct an investigation into incidents and complaints of workplace harassment that is appropriate in the circumstances. On its face, this provision does not only require investigations when complaints are made but also when there are incidents of harassment that the employer is aware of. Employers must be proactive in ensuring that the workplace is free from harassment and are required to act if there are suspicions of harassment.
Preventing workplace harassment is the responsibility for everyone in the workplace. Employees must be able to protect themselves from harassment and report misconduct. Correspondingly, employers must consider the complaint seriously and address any inappropriate workplace behaviour. Preventing workplace harassment leads to a better workplace environment which gives rise to significant boons to both employee workplace satisfaction, and potentially, productivity for the employer.
If you have experienced workplace harassment, contact Monkhouse Law today for a free consultation.