Do you have a policy that addresses workplace sexual harassment? If not, you may be violating the law
Do you have a workplace harassment policy and program that covers sexual harassment? We asked this exact question in the August 28, 2016 HRinfodesk poll: 77 percent of respondents said “yes”, 14 percent indicated “yes” but “separate from harassment policy”, eight percent said “no”, while two percent revealed that they “don't need one”.
Employers have a legal duty to take steps to prevent and respond to sexual harassment under Human Rights legislation and in some jurisdiction under Occupational Health and Safety legislation. The key to preventing sexual harassment is for employers and management to make it clear to every employee and workplace participant that sexual harassment is unacceptable in the workplace.
Depending where your business is operating in Canada, you may be in violation of the law as an employer if you have not developed and implemented a policy and/or supporting program in relation to sexual harassment.
Let's look at what the law tells us:
Human Rights legislation
In all jurisdictions across Canada, sexual harassment is prohibited.
Employers are responsible for maintaining a work environment that is free from sexual harassment for all employees. Does this mean that a sexual harassment policy is required under human rights legislation? No. However, an effective sexual harassment policy in the workplace can decrease an employer's liability should a human rights complaint be made. This exact sentiment has been expressed by the Alberta Human Rights Commission. “People have to know there is a policy and what it says. The employer's position on harassment should be contained in a clear policy statement, distributed to all employees, posted on bulletin boards and provided to all managers, supervisors and new employees.”
Health and Safety legislation
1. Federal workplaces
In accordance with the Canada Labour Code, every employer is responsible for making every reasonable effort to ensure that no employee is subjected to sexual harassment. Every employer is required to, after consulting with the employees or their representatives, if any, issue a policy statement concerning sexual harassment. The Code stipulates what such policy statement must include. For instance, a statement to the effect that every employee is entitled to employment free of sexual harassment and a statement explaining how complaints of sexual harassment may be brought to the attention of the employer must be included, among others. Employers are required to make each person under their direction aware of the policy statement. See Division XV.1 Sexual Harassment of the Code.
2. Ontario workplaces
Employers have specific duties with respect to workplace harassment under the Occupational Health and Safety Act. Under the Act, employers are required to prepare a policy with respect to workplace harassment and review the policy as often as is necessary, but at least annually. Note: The definition of workplace harassment includes workplace sexual harassment.
The policy is required regardless of the size of the workplace or the number of workers. If six or more workers are regularly employed at the workplace, the policy must be in written for and posted in a conspicuous place in the workplace. If less than six workers are regularly employed in the workplace, the policy does not necessarily have to be written, unless a Ministry of Labour inspector orders otherwise. See section 32.0.1of the Act.
Further, under the Act, an employer is required to, in consultation with the committee or a health and safety representative, if any, develop and maintain a written program to implement the policy with respect to workplace harassment. The program is required to include, among other things, measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor and how incidents and complaints of workplace harassment will be investigated and dealt with. See section 32.0.6 of the Act.
Per the Ontario Ministry of Labour, both the policy and program can be combined, as long as all of the requirements of the policy and program are complied with.
3. Western workplaces
In British Columbia, as provided under the Workers Compensation Act, every employer is required to ensure the health and safety of all workers. The Act also requires an employer to inform, instruct, train and supervise workers to ensure their safety and that of other workers. Policy Item D3-115-2 (RE: Employer Duties - Workplace Bullying and Harassment), which flows from these section requirements under the Act, discusses employer duties regarding bullying and harassment. The Policy identifies what WorkSafeBC considers to be reasonable steps for an employer to take to address the hazards of workplace bullying and harassment. This includes, among others, developing a policy statement with respect to workplace bullying and harassment not being acceptable or tolerated, and developing and implementing procedures for how the employer will deal with incidents or complaints of workplace bullying and harassment.
In Manitoba, under the province's Workplace Safety and Health Regulation, an employer is required to develop and implement a written policy to prevent “harassment” in the workplace which includes sexual harassment, and ensure that workers comply with such policy. The policy must be developed in consultation with (a) the committee at the workplace; (b) the representative at the workplace; (c) or when there is no committee or representative, the workers at the workplace. Among other requirements, the harassment prevention policy must provide information on how to make a harassment complaint; how a harassment complaint will be investigated; and how the complainant and alleged harasser will be informed of the results of the investigation. An employer is required to post a copy of the policy in a conspicuous place at the workplace. See Part 10, Harassment, of the Regulation.
In Saskatchewan, under the province's Occupational Health and Safety Regulations, an employer, in consultation with the committee, is required to develop and implement a policy in writing to prevent harassment. Note: The definition of workplace harassment includes workplace sexual harassment. The Regulation stipulates what such policy must include. Among other requirements, the policy must include an explanation of how complaints of harassment may be brought to the attention of the employer as well as a reference to the provisions of the Act respecting harassment and the worker's right to request the assistance of an occupational health officer to resolve a complaint of harassment. The employer is required to post a copy of the policy in a conspicuous place that is readily available for reference by workers. See section 36 of the Regulations.
4. Atlantic workplaces
Arbitrators and courts are becoming increasingly serious about holding employers responsible for hostile work environments and workplace incidents constituting workplace harassment.
As such, although not required by law, employers should develop, maintain and implement a written workplace harassment policy and program in consultation with the joint health and safety committee or a health and safety representative, if any. The policy should be posted in a conspicuous place in the workplace.
For guidance on what such type of policy and program should include, consult the discussion "Written workplace harassment prevention policy" in The Human Resources Advisor. If you are not already a subscriber, click here for a 30-day trial.
Employment Standards legislation
In Prince Edward Island, under the province's Employment Standards Act, every employer is required to, after consultation with employees or their representatives, if any, issue a policy statement concerning sexual harassment. The Act stipulates what such policy must contain. Among other requirements, the policy must contain a statement to the effect that every employee is entitled to employment free of sexual harassment and that the employer will take such disciplinary measures as the employer considers appropriate against any person under the employer's direction who subjects any employee to sexual harassment. Further, every employer is required to make each person under the employer's direction aware of the policy statement. See section 27 of the Act for more.
If you are a federally regulated worker and/or are an employer in the provinces of British Columbia, Manitoba, Ontario, Prince Edward Island and/or Saskatchewan, you are required by law to have a policy that addresses sexual harassment.
For those employers who operate in other provinces, you may want to consider implementing such a policy because, as mentioned above, employers have a legal duty to take steps to prevent and respond to sexual harassment. One of the ways employers can prevent cases of sexual harassment is by implementing a clear and comprehensive written and published anti-sexual harassment policy. For an in-depth analysis of the elements to consider when drafting your workplace harassment policy, consult The Human Resources PolicyPro. The software provides compliance-based sample policy, risk assessment, reporting and investigation forms and checklists. Click here for a free trial request.
You may also want to consider checking out The Human Resource Advisor, which has a complete section dedicated to workplace harassment. The section includes the discussions, "Written workplace harassment prevention policy", "Employer responsibilities regarding workplace harassment" and "How workplace harassment can affect a person and the organization", just to name a few. Click here for a free trial request.
The above is a brief overview of the law in relation to a workplace harassment policy and program that covers sexual harassment. Ultimately, applicable law in each jurisdiction should be consulted to ensure you are in compliance with the law.