1. Workplace Harassment Policy & Procedure Updates

2. Road Map Bill 132 & updates on Workplace Harassment
Expanded definition of Workplace Harassment
New Policy/Program Requirements
Duty to Investigate
External Investigators
Review of Employee Rights and Obligations
Examples of Harassment in the Workplace
Review updates to D380 (Workplace Harassment Policy/Procedure)

3. What is Bill 132?
Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment)
Includes amendments to, among other things, the Ontario Occupational Health and Safety Act
Amendments focus on:
Harassment policies; and
An employer’s duty to investigate incidents/complaints of harassment

4. Why do we need bill 132?
in 4 Canadians (28%) report having been sexually harassed at work.
1 in 7 Canadians (14%) report having been subjected to unwanted sexual contact at work.
4 in 5 of the Canadians who indicated that they have been sexually harassed or subjected to unwanted sexual contact did not report to their employer.
21 per cent of that group said that they did not report the incident because they did not think that their employer would respond well.
1 in 4 who did report the incident to their employer found them to be “unresponsive and dismissive”.

5. 1) Expanded Definition of Workplace Harassment
Expanded under Bill 132 to include “workplace sexual harassment”.
“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 (amendments underlined)

6. 1) Expanded Definition of Workplace Harassment Continued….
“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.

7. Test for “known or ought reasonably to be known…”
The reference to comment or conduct "that is known or ought reasonably to be known to be unwelcome" means that there are two parts to the test for harassment.
we have to consider if the person carrying out the harassment knew how their behaviour would be received.
we must consider how someone else would generally feel about the behaviour – this can help us think from the perspective of a person who is being harassed.

8. 2) New Policy/Program Requirements
The workplace harassment program must:
Formal Investigations may take place when:
Measures to report workplace harassment to someone other than the employer or supervisor if that person is the alleged harasser
How incidents and complaints will be investigated and dealt with
How information related to incident or complaint of workplace harassment will not be disclosed unless necessary
Requirement and mechanism to ensure that complainant and alleged harasser will be informed in writing of the results of investigation and any corrective action that follows
How information will be kept confidential unless disclosed for the purpose of the investigation
Be developed in consultation with the health and safety committee or representative (if one exists);
Be reviewed on an annual basis (at least); and
Be in writing

9. 3) Duty to Investigate What is an “incident”?
According to the Code of Practice, “[a]n employer must ensure that an investigation appropriate in the circumstances is conducted when”:
1) the employer or supervisor becomes aware of the incident of workplace harassment by the worker who allegedly experience it or another worker; or
2) a complaint, whether in writing or verbal, of workplace harassment is made to the employer.
Incidents could come to light via:
•Office rumours or gossip
•Potential problems identified through an employee survey
•Issues raised through a 360-review
•Information that comes to light after a termination
•Issues raised during an exit interview
•Issues that surface during a proceeding
•Anonymous complaints?

10. 3) Duty to Investigate continued…
The Code of Practice sets out seven (7) steps that an employer must “at a minimum” complete as part of their investigation:
1. Maintain confidentiality; inform parties of confidentiality requirements.
2. Interview the complainant and the alleged harasser.
3. Give the alleged harasser an opportunity to respond to specific allegations and the worker an opportunity to reply.
4. Separately interview any relevant witnesses.
5. Collect and review relevant documents.
6. Take appropriate notes and statements during interviews.
7. Prepare written report of investigation, including, finding of fact.

11. 4) External Investigators: Inspector Orders
According to section 55.3(1) of OHSA: “An inspector may in writing order an employer to cause an investigation described in clause (1)(a) to be conducted, at the expense of the employer, by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector and to obtain, at the expense of the employer, a written report by that person
An Employer may also elect to have an external investigator when:
•The allegations have an “ew” factor or are complex
•There is a high profile person involved
•The parties or subject matter is “too close for comfort”
•There is uncertainty about how to proceed
•The potential internal investigators are inexperienced or untrained
•The investigation has a high likelihood of legal challenge
•There are other demands on the potential internal investigator’s time
•There is an institutional bias that cannot reasonably be overcome

12. 5) Employee Duties & Rights
1. Follow policies & procedures for Harassment & Model Behaviour that shows:
Respect for people
Fairness
Courtesy
Honest feedback
Acceptance of different working styles
Openness to change
Integrity
Leadership/Responsibility
Harassment is a complex matter. What one person considers as proper behaviour, another may perceive to be harassment.
In many cases, the lines are not sharply defined. Education, conversations, reflection and awareness of basic human values are the beginning.
The test is in how we treat one another in our daily interactions. Often, what is needed is simple, basic decency.

13. 5) Employee Duties & Rights Continued….
2. Speak to the Offender:
Tell the offender to stop the behaviour. In many cases, when the offender is aware that his/her conduct is unwelcome and will not be tolerated, he/she stops and the complaint is resolved
If the alleged harasser is your supervisor, then report the allegation to the supervisor’s next level manager, or the Human Resources Manager
3. Submit a Written Statement:
If the behavior does not stop, or if you are uncomfortable speaking directly to the alleged harasser, you should submit a written (or verbal) statement to your Supervisor
This information will be discussed in an initial meeting with your Supervisor You may be interviewed by the HR Manager and your Supervisor to provide information or to further clarify your statement.

14. 5) Employee Duties & Rights Continued….
Based on the findings:
The HR Manager will present his/her recommended corrective action to the Executive Director (ED).
The ED will act as the final decision maker and will ensure that the appropriate action is carried out in accordance with this policy and the Collective Agreement
The worker-complainant and the alleged harasser will be informed in writing of investigation results and of any corrective action taken.
If you are not satisfied with the outcome…
the Ministry of Labour Inspectors have the authority to:
a. Order the Employer to have an impartial person conduct the investigation into a report of harassment at the Employers’ expense
b. Specify the qualifications of the impartial investigator
c. Require the Employer to obtain a written report from the investigator

15. “Live” Examples – let’s get real!

16. Examples of Workplace Harassment
Repeated or one single severe event
Yelling at the person; threatening; prohibiting the person from speaking to others.
Unwanted sexual advances which may or may not be accompanied by threats or explicit or implicit promises.
Making rude, degrading or offensive remarks, gestures that seek to intimidate.
Engaging in reprisals for having made a complaint under this Policy.
Discrediting the person by spreading malicious gossip or rumours, ridiculing, humiliating, calling into question private life
Name calling in private or in front of others.
Isolating the person by no longer talking to him or her, denying or ignoring his or her presence, distancing him or her from others.
Destabilizing the person by making fun of his or her beliefs, values, political and/or religious choices, and mocking his or her weak points.
Harassing a person based on a prohibited ground of discrimination (as described in Canadian Human Rights Act and contained in the Policy).

17. Forms of Sexual Harassment
May include:
sexual solicitation and advances (your teacher asks for sex in exchange for a passing grade)
a poisoned environment (pornographic images in the workplace)
gender-based harassment (targeting someone for not following sex-role stereotypes)
violence (if inappropriate sexual behaviour is not dealt with, it may move to more serious forms, including sexual assault and other violence).

18. Gender- Based Harassment (sub-type of sexual harassment)
What is gender-based harassment?
It is only one type of sexual harassment
It is “any behaviour that polices and reinforces traditional heterosexual gender norms”
It is often used to get people to follow traditional sex stereotypes (dominant males, subservient females).
It is also used as a bullying tactic, often between members of the same sex.
Unlike some other forms of sexual harassment, gender-based harassment is not generally motivated by sexual interest or intent.
often based on hostility and is often an attempt to make the target feel unwelcome
may look the same as harassment based on sexual orientation, or homophobic bullying
With the addition of the new grounds of “gender expression” and “gender identity” to the Code, many claims alleging gender-based harassment may also cite discrimination and/or harassment based on gender expression.

19. Examples of Sexual & Gender-based Harassment
demanding hugs, invading personal space
making unnecessary physical contact, including unwanted touching, etc.
using language that puts someone down and/or comments toward women (or men, in some cases), sex-specific derogatory names
leering or inappropriate staring
making gender-related comments about someone’s physical characteristics or mannerisms
treating someone badly because they don’t conform with sex-role stereotypes
showing or sending pornography, sexual pictures or images
sexual jokes, including passing around written sexual jokes
rough & vulgar humour or language related to gender
using sexual or gender-related comment or conduct to bully someone
spreading sexual rumours

20. Examples of Sexual & Gender-based Harassment Continued….
making suggestive or offensive comments or hints about members of a specific gender
making sexual propositions
verbally abusing, threatening or taunting someone based on gender
bragging about sexual prowess
demanding dates or sexual favours
asking questions or talking about sexual activities
making threats to penalize or otherwise punish a person who refuses to comply with sexual advances (known as reprisal).

21. Review of Updates to D380: Workplace Harassment & Bullying Policy and Procedure