Ontario Legislature Passes Bill 132: What Employers Need to Know

Bill 132 will increase the obligations on employers to protect employees against workplace harassment. The Ontario Government recently passed Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015 and employers will need to comply with its requirements as of September 8, 2016.

Many employers might reminisce about Bill 168, which was enacted in 2009 and which amended the Occupational Health and Safety Act, RSO 1990, c O.1 (the “OHSA”) to address workplace violence and harassment. Bill 132 enhances and expands the provisions injected into OHSA as a result of Bill 168. While Bill 132 amends a number of statutes, the focus has mainly been OHSA, which increases obligations for employers with respect to workplace investigations related to complaints of harassment or sexual harassment.

The 411: How are Employee Protections Enhanced Under OHSA?

Bill 132 expands the definition of “workplace harassment” by adding “sexual” harassment to align with current case law. In OHSA, each reference to workplace harassment would include workplace sexual harassment. “Workplace sexual harassment” is now defined in the legislation to mean (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.

Under OHSA, Bill 132 increases employee protections against harassment and violence by:

• Mandating that employers include written measures and procedures for workers to report incidents in addition to the current requirement that employers create a workplace harassment program;
• Requiring employers to investigate incidents and complaints of workplace harassment in a manner “that is appropriate in the circumstances”;
• Requiring the employer to report back to the employee and the alleged harasser, in writing, with the outcome of any investigation or corrective action taken against the alleged harasser;
• Directing measures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
• Directing employers to review programs addressing harassment as needed but, at a minimum, annually;
• Requiring employers to provide training and instruction to their workers on their workplace harassment policies; and
• Permitting the Ministry of Labour to conduct a workplace harassment investigation into employee complaints or hire an independent third-party to conduct an investigation at the expense of the employer.

Given the high costs and disruption of workplace investigations, it is important that employers extensively train and monitor employee behaviour in the workplace in order to prevent complaints. With increased obligations, Bill 132 brings the potential for even greater employer liability as a result of workplace harassment. Bill 132 affirms that sexual harassment is a workplace safety issue as defined by OHSA, in addition to being a human rights issue under the Ontario Human Rights Code. Under OHSA, employers may face fines, prosecution and orders, notwithstanding any potential human rights liability that may also exist.  

Interestingly enough, Bill 132 does put a feather in the cap of employers. The bill codifies current case law and confirms that an employer’s normal management and direction of employees will not be considered harassment. This change is beneficial to employers who deal with trivial harassment issues such as employees complaining that a poor performance review constitutes harassment.

Top 5 Takeaways: What Steps Can Employers Take Toward Compliance?

Against this changing landscape, employers need to be more diligent in implementing appropriate measures for reporting workplace harassment incidents, as well as procedures for how the employer will investigate incidents and complaints.

Bill 132 will require many Ontario employers to roll up their sleeves and revisit their workplace harassment and violence policies. Given that the amendments to OHSA come into force on September 8, 2016, employers must immediately look at doing the following:

1. Review and amend, if necessary, their workplace harassment and violence policies to ensure compliance with OHSA requirements;
2. Amend their policies and procedures to specifically include “workplace sexual harassment”;
3. Develop written plans and programs addressing workplace harassment and a timeline to review at least annually;
4. Create OHSA-compliant training procedures for incoming and existing employees; and
5. If operating colleges and universities, develop comprehensive reporting requirements for sexual violence.

If you have any questions or concerns regarding what is required under Bill 132, please contact anyone in the Labour, Employment and Employee Benefits Group at Baker & McKenzie LLP.