#MeToo: Workplace Harassment

The fall of 2017 has been marked by an open discussion of the violence and harassment women suffer in the workplace. This discussion has expanded to include all kinds or workplaces and situations, with #MeToo providing insight into the breadth of the issue. No business sector is immune: technology companies, retail, restaurants, services - all businesses need to be prepared to address the problem - for workplace as well as legal reasons.This points a spotlight on the need for workplaces to have comprehensive and enforced Workplace Violence and Harassment Policies, as well as established processes for workplace investigations.

In Ontario, Occupation Health and Safety legislation requires that employers have both workplace harassment as well as workplace violence policies in place, as well as programs to implement those policies.

According to the Occupational Health and Safety Act (as revised by Bill 168 in 2010):

Workplace violence means:

  • The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker
  • An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker
  • A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

Workplace harassment means:

  • 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.

Workplace harassment may include bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials, or offensive or intimidating phone calls.

Policies and programs

Employers must:

  • Prepare policies with respect to workplace violence and workplace harassment,
  • Develop and maintain programs to implement their policies, and
  • Provide information and instruction to workers on the contents of these policies and programs.

Workplace violence programs must include measures and procedures for:

  • Summoning immediate assistance when workplace violence occurs or is likely to occur, and
  • Controlling risks identified in the assessment of risks.

Both workplace violence and workplace harassment programs must include measures and procedures for workers to report incidents of workplace violence/harassment and set out how the employer will investigate and deal with incidents or complaints.

In addition to complying with Occupational Health and Safety requirements regarding workplace harassment and workplace violence policies and programs, a workplace should have a well established process for conducting workplace investigations.

A workplace investigation is a process, conducted by either the employer or on behalf of the employer, usually in response to an allegation or complain of improper workplace conduct.  The investigation is a fact finding effort and ultimately should enlighten and support decisions made by the employer.  The investigation may lead to disciplinary action, mediation, coaching, training, apologies, warnings or even suspensions or terminations.

Organizations should have a process for determining the initial reaction to an incident or allegation, including whether to proceed with an internal investigation or whether to engage an outside investigator.

Take Aways:

In Ontario, all employers are required to have both Workplace Harassment and Workplace Violence policies AND programs to implement those policies;

-Creating a workplace culture where those policies are known and accepted by the entire organization is the best way to mitigate employer risk of allegations of a hostile workplace; and

-Employers should have a plan in place for how to proceed with workplace investigations to respond to allegations of harassment or violence.