“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 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.”
The OHSA re-affirms that reasonable actions taken by an employer or supervisor to manage and direct workers or the workplace do not constitute workplace sexual harassment.
Section 32.06(2) of the OHSA, which addresses the employers requirement to implement a workplace harassment policy, has been broadened to incorporate an obligation to:
- include measures and procedures for workers to report workplace sexual harassment to a person other than the employer or supervisor if the employer or supervisor is the alleged harasser;
- set out how information obtained during an investigation, including identifying information about any individuals involved, will not be disclosed unless necessary for the purpose of investigating or taking corrective action or otherwise as required by law;
- set out how a worker who has allegedly experienced workplace sexual harassment and the alleged harasser, if a worker of the employer, will be informed in writing of the results of the investigation and any action taken or to be taken as a result of the investigation.
In addition, Bill 132, Prevent Sexual Harassment in the Workplace, outlines new employer responsibilities to make sure that:
- an investigation, appropriate in the circumstances, is conducted into incidents and complaints of workplace harassment;
- a worker who alleges workplace harassment and the alleged harasser, if a worker of the employer, are informed in writing of the results of the investigation and any corrective action taken or to be taken as a result of the investigation.
Bill 132 explicitly states that the outcome of a workplace investigation and any report produced for the investigation is not a report that must, pursuant to OHSA Section 25(2), be supplied to a Joint Health & Safety Committee, a worker health and safety representative, or other workers.
Bill 132, Prevent Sexual Harassment in the Workplace, amends the OHSA to empower health and safety inspectors to require an employer to conduct an investigation, at the employer’s expense, by an unbiased party and to obtain, also at the employer’s cost, a report from that unbiased party.
Changes to the Limitations Act under Bill 132 mean that where any of the offending conduct has been engaged in – including where there is a claim for negligence, a breach of fiduciary or other duties and/or vicarious liability – there is no applicable limitation period applicable to a proceeding regardless of the expiry of any previously applicable limitation period or the fact that the proceeding commenced prior to the passing of Bill 132 except if the proceeding was: (1) dismissed by a court and no further appeal is available; or (2) settled by the parties and the settlement is legally binding. Bill 132 took effect on September 8, 2016.
