Sexual Harassment In The Workplace and Bill 132

“It is out there. We all know that it’s out there. Yet, many of us still ignore it, pretend that we don’t hear it or worse yet, we laugh and join in on it. Sometimes out of embarrassment. Sometimes out of fear. Sometimes out of a need to blend in and not center ourselves out from the crowd”

Dealing with sexual Sexual Harassment Poll resultsharassment can be very difficult and unfortunately more than a quarter of working Canadians have experienced it or been effected by it. According to an Angus Reid Institute National Survey, women were more than three times as likely to experience harassment (43% to 12%). Young men were the least likely to have such experiences (9%), while nearly half of women aged 35–54 (47%) reported being harassed. It can trigger a variety of stress-related illnesses, relationship difficulties and upset productivity and engagement. (http://www.canadianbusiness.com/blogs-and-comment/sexual-harassment-in-canada-statistics/)

In March 2016, Ontario passed Bill 132 as part of the Sexual Violence and Harassment Action Plan Act,  and amends the Occupational Health and Safety Act. This Bill comes into effect on September 8, 2016.  Not only does it expand the definition of workplace harassment, making it one of the most stringent in the country, but it creates specific duties for all employers to:

  • develop policies and procedures to prevent workplace harassment and violence
  • investigate incidents and complaints of workplace harassment
  • train all workers on policy, reporting, and investigation process

Educating around sexual harassment and developing strong policies and procedures to deter it are the most effective means of minimizing its occurrence and impact. Unfortunately, the Angus Reid Poll found that when employees did report sexual harassment or unwanted sexual contact to their employer, one quarter found them to be “unresponsive and dismissive.”

How Is Sexual Harassment Defined?

The Canada Labour Code defines sexual harassment as any conduct, comment, gesture, or contact of a sexual nature that is likely to cause offence or humiliation to any employee; or that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.

Sexual harassment is unwelcome or unwanted conduct of a sexual nature, whether it is verbal, visual or physical, that creates an intimidating or detrimental work environment, or leads to job-related consequences.

Ontario’s New Definitions are outlined as:

Workplace harassment

  1. engaging in a course of vexatious comment or conduct against a worker in a workplace that is know or out reasonably to be known to be unwelcome, or
  2. workplace sexual harassment

Sexual harassment

  1. engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender express, where the course of comment or conduct is known or ought to reasonably to be known to be unwelcome, or
  2. 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

 

Employers Responsibilities:

Sexual harassment is a form of sexual discrimination that falls under the jurisdiction of the Ontario Human Rights Commission and the Human Rights Code of Canada. The Human Rights Commission states that, “Any act of harassment committed by an employee, in the course of employment shall be considered to be an act committed by that employer.”

Companies and supervisors may both be held equally liable for acts of harassment committed by their workers, even if unknown by management. However, an act of harassment shall not be considered to be an act committed by an employer if it is established that the employer exercised all due diligence to prevent this act and to mitigate or avoid its consequences. These preventive measures, include a comprehensive policy and thorough training sessions for all management and employees.

Obligations:

In addition to having a workplace harassment policy the employer must:

  1. develop and maintain a written program to implement the policy
  2. review it annually

 

What Is It?

The largest occurrence of sexual harassment is where there is an abuse of power, however it is important to note that sexual harassment does exist between co-workers. Two of the key words from our sexual harassment definition are unwelcome and unwanted conduct. Sexual harassment is NOT a relationship of mutual consent or a hug between friends.

 

 

SEXUAL HARASSMENT IS:

…UNWANTED and UNSOLICITED…

VERBAL Examples Of Sexual Harassment

  • Sexual remarks, innuendoes or insults
  • Request for sexual favours connected to either threats of negative impact on employment or promises of positive effect on employment
  • Sexual jokes, stories or emails
  • Repeatedly requesting a date of a person not interested
  • Sexual remarks about a person’s clothing, anatomy or looks whether complimentary or insulting
  • Spreading rumours or telling lies about a person’s sex life
  • Actions detrimental to a person’s ability to work including withholding pertinent information
  • Kissing sounds, howling, smacking lips, whistling, and cat calls
  • Repeated referral to a person as a ‘girl’, ‘hunk’, ‘doll’, ‘babe’, ‘honey’, or ‘sweetie’
  • Condescension or paternalism which undermines self-respect
  • Re-telling or asking about sexual activities, fantasies, preferences, or history
  • Uninvited letters or telephone calls
  • Hostile insults

NON-VERBAL Examples Of Sexual Harassment

  • Displaying pin-ups, or obscene material, graffiti
  • Leering, ogling, staring or suggestive looks
  • Providing favours or special treatment in expectation of sexual favours
  • Uninvited personal notes, letters or telephone calls
  • Sexually explicit or obscene gestures
  • Facial expressions such as winking, throwing kisses, or licking lips
  • Hiring of strippers or exotic dancers
  • Following or stalking a person or blocking a person’s path
  • Practical jokes that result in embarrassment

PHYSICAL Examples Of Sexual Harassment

  • Strippers at parties
  • Inappropriate touching, massage or body contact
  • Fondling, hugging, kissing, patting, or stroking
  • Standing close to or brushing up against a person
  • Indecent exposure
  • Sexual Assault

SEXUAL HARASSMENT IS NOT:

  • A mutually consenting relationship
  • A flirtation or office romance between mutually consenting people
  • A hug between friends

 

It is important to note that one person’s perception of what constitutes sexual harassment can vary dramatically from the perception of another. What one person finds offensive another may find acceptable. The difficulty lies within the concepts of perception versus intention and in many cases perception is more important that intention. This grey area around perception can make sexual harassment complaints difficult to deal with. Some of these grey areas involve:

  • Jokes -There is a big difference between good humour and unacceptable humour. Humour depends on the audience and the content of the joke. Jokes of any sexual nature or ones that single a person out are unacceptable in the workplace. The best rule to use is ‘if in doubt, don’t’.
  • Pornographic or Obscene Material – The courts have ruled that pin-ups and other material, may be considered obscene and constitutes a form of sexual harassment. This material is not work related and has no place in the work environment.
  • Language – This is a difficult subject, as language is a form of communication and it too can be taken in a way that it was not intended. Comments like, ‘babe’, ‘sweetie’, and ‘dear’ can be considered patronizing and inappropriate. Though it may be intended to be respectful or endearing, it may be taken in a way that is condescending or sexual.

 

Costs Of Sexual Harassment

The Canadian Human Rights Commission reported that almost half of women and one-third of men experience unwanted sexual attention. Younger workers, and men and women at the bottom of the economic scale are more likely to experience gross overt forms of sexual harassment and professionals and managers tend to receive more subtle treatment.

Scope

  • The Canadian Human Rights Commission states in their Annual Report that sexual harassment cases represented 17% of their cases filed
  • Research has shown that the victims of sexual harassment generally choose to have the situation remedied “in-house” rather than go to court
  • In Ontario, the Workers’ Compensation Act recognizes that psychological disability caused by sexual harassment in the workplace is a compensatable injury
  • Employees who lose their jobs and become unemployed because of sexual harassment are eligible for Employment Insurance benefits under the category of ‘just cause’

Individual

  • Faced with unwanted and unsolicited sexual harassment victims feel confused, frustrated and angry. They may not know how to react to the situation and may become very anxious or depressed
  • Due to the fear of losing their jobs, they may silently endure the sexual harassment considering it to be a “normal” occupational hazard
  • Some employees will suffer the humiliation and harassment silently and when they can no longer take it they will quietly quit
  • Some employees feel embarrassed or ashamed when they talk about these incidents of harassment. They are afraid that it will reflect badly on their character

Corporate

  • Low morale, lowered performance, increased absenteeism, increased turnover and reduced engagement impact the corporate bottom line
  • Not to mention the financial penalties that can be assessed against the employer and the time taken away from productive work in investigating a sexual harassment claim, a company’s credibility can take years to rebuild and bad press does accompany sexual harassment.
  • A majority of men and women are likely to confide in a co-worker, friend or relative about what is happening to them in the workplace and it doesn’t take long for this to ripple out to the general public
  • Not addressing sexual harassment in the workplace is bad business

 

Employer Strategies:

  1. Create Policy

Every employer, after consulting with employees or their representatives, must issue a policy on sexual harassment. Work with your management team and your Joint Health and Safety Committee to create a clear and strong policy that outlines the types of prohibited conduct with examples provided. Publish your policy (online and posted in the workplace) and ensure it’s easily accessible to everyone within the organization.

The policy must contain at least the following items:

  • a definition of sexual harassment that is substantially the same as the one in the Code
  • a statement to the effect that every employee is entitled to employment free of sexual harassment
  • a statement to the effect that the employer will make every reasonable effort to ensure that no employee is subjected to sexual harassment
  • a statement to the effect that the employer will take disciplinary measures against any person under his or her direction who subjects any employee to sexual harassment
  • a statement explaining how complaints of sexual harassment may be brought to the attention of the employer
  • a statement to the effect that the employer will not disclose the name of the complainant or the circumstances related to the complaint to any person unless disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measures in relation to the complaint
  • a statement informing employees of their right to make a complaint under the Canadian Human Rights Act

Under the new Bill, the policy and the program, must include:

  • measures and procedure for worker to report incidents of harassment
  • describe how harassment complaints will be investigated, including indentifying who will be involved
  • set out how information obtained about a complaint will be protected from disclosure
  • indentify procedures for notifying complainant and respondent of the results of the investigation and any corrective action taken.

 

  1. Create Procedures

Outline an easy and accessible complaint procedure within your Policy. Identify a person or department that will respond to employee complaints. Make sure your employees know they may bypass their immediate manager when making a complaint.

  1. Train Employees

The new Bill provides a Duty To Train workers with information and instruction on the contents of the policy and program. Employers must provide both in-depth management training on harassment prevention and a course for employees. ‘Refresher’ training to all employees must occur every year. If your organization regularly employs more than 5 employees, the workplace harassment program will need to be posted in the workplace. You should have a method for ensuring and tracking that all employees receive and review the workplace harassment policy and program, and that each employee acknowledges receipt and review of the policy and program.

  1. Investigate Claims

Ensure trained personnel investigate all claims as quickly and thoroughly as possible. The trained personnel should advise the claimant, witnesses, and employees that no one will experience any form of retaliation for submitting a complaint or cooperating in an investigation.

  1. Identify & Communicate

Identify any inappropriate workplace situations that arise and send out a communication outlining the Dos and Don’ts of a particular situation.

 

 

Investigations:

 

What Triggers a Duty to Investigate?

Anytime a complaint of harassment, discrimination or other potential legal violation is received, either formally or informally, the organization must conduct an investigation. This is true even where the complaint appears to have no merit whatsoever. The following may also trigger an investigation:

  • When a person, other than the aggrieved person, complains about harassment
  • When someone indicates that inappropriate conduct is occurring, even if the word “harassment” is not used
  • When a supervisor personally observes inappropriate conduct or language, or has general knowledge of a potentially hostile work environment. In this situation, the supervisor must request that any inappropriate conduct cease and that an investigation be conducted

 

Note: The investigation should proceed even when the alleged victim or other complainant does not request or consent to an investigation. Honoring such a request could place other employees at risk for unlawful harassment. “Doing nothing” or failing to investigate could place the organization at risk for liability for failure to investigate and failure to take prompt action. The investigator should therefore advise the complainant that it will investigate the complaint, but it should also elicit and address any specific concerns that the complainant has about an investigation.

 

 

Confidentiality

There is no absolute confidentiality requirement. Information can be shared on a “need to know basis” during investigations and while the employer is trying to remedy a problematic situation. The employer should make it very clear to all the participants in the investigation process that the participants are required to maintain confidentiality about the investigation, and that any employee who breaches his/her obligation of confidentiality will be subject to discipline.

 

MOL Investigations

Ontario Ministry of Labour Inspectors will soon have the power to issue orders about workplace harassment investigations. An individual can contact the Ministry of Labour through its Health and Safety Contact Centre or by contacting the Ministry directly to report unsafe work practices. An inspector may also learn of a workplace harassment issue when conducting an inspection for general compliance or other reasons.

 

Note: Effective September 8, 2016, a Ministry of Labour Inspector will have the power to order that a workplace harassment investigation be conducted by an independent third party at the expense of the employer.  The MOL Inspector will also have the power to order that a written report be obtained from the third part investigator at the expense of the employer.

 

* this report answers some specific questions around investigations. Note: this is not a recommendation of this agencies services rather a respect for the FAQ that they put together. http://www.mathewsdinsdale.com/bill-132-amendments/

 

 

Operating In Several Provinces Or Internationally:

 

  • Create a broad workplace program using the most stringent definitions and guidelines
  • Incorporate specific policies and procedures for the province or country that you operate in
  • Conduct ongoing training so that managers and workers know what is expected to create a culture of respect and inclusion and what behaviour is not tolerated, as well as how to access the policy
  • Ensure accountability

 

 

 

Beverly’s Tips:

Ensuring a respectful culture can seem like a daunting task, however a clear policy and thorough training can help prevent any misunderstandings in perception and intention.  Outright offenses that are handled quickly and efficiently send a positive message throughout the organization that violations will not be tolerated.

For several years, I developed and trained sexual harassment policies for various organizations. One of the key factors within a policy is guidelines on how to handle an offense.  The following Proactive Personal Response may  be useful for many verbal, visual and some physical violations.

 

PROACTIVE PERSONAL RESPONSE

Individuals are encouraged to follow what is labeled a Proactive Personal Response as it has been found that ignoring or avoiding the behaviour does not clearly establish the fact that the conduct is unwelcome or unwanted.

  1. Confront the offender – Confronting the offender and the offensive behaviour establishes personal boundaries defining what is unwelcome and unwanted. A direct response with a brief and clear message is the best deterrent. Humour should not be used as it can too easily be misunderstood. If the offended individual is not able to confront the offender they should put it in writing and send it to the offender.
  2. Document – The offended individual should maintain documentation of all such activities. A copy of the letter should be made and kept off business premises.
  3. Report – If the harassment continues after the offender has been confronted verbally or in writing, the behaviour along with the evidence must be brought to the immediate supervisor and/or designated officer as named in your Sexual Harassment Policy.

 

 

BENEFITS OF PROACTIVE PERSONAL RESPONSE

  • Gives all of the individuals involved a chance, usually for the first time, to understand perception versus intention. Since neither person may have an understanding of how the other sees the problem a discussion may help
  • Gives those who are wrongly accused or did not intend to offend the chance to defend themselves
  • Gives those are rightly accused the chance to make amends
  • Encourages individuals to maintain carefully written records of all offending actions, dates and discussions, which provide evidence of the offence. This step is vital if management or the courts take later action
  • Gives the offending individual(s) a fair warning
  • Provides the offended employee a chance to have the harassment stopped immediately without provoking retaliation, personal embarrassment or any acts that may also damage the company reputation
  • Provides the offended individual a way to demonstrate that all reasonable means were exercised to stop the actions of the offender. This step clearly defines personal boundaries and territories

Dealing with sexual harassment can be very difficult and it can negatively impact both the individual and the overall corporate environment. However, companies can protect themselves by implementing a comprehensive policy and providing training to employees and leaders on that policy. Individuals are then encouraged to follow a Proactive Personal Response as it has been found to be 90% effective in deterring most acts of sexual harassment and in cases where it does not stop the harassment, the individual is able to effectively address the issues through the policy itself.

 

 

Do you need someone to train your employees on your Sexual Harassment Policy?
If so, Beverly Can Provide This Training. Please feel free to call and discuss the details at: 705-786-0437

 

If you have some strategies to share – comment on this posting!

 

Additional Resources:

Bullying Awareness Week

International Day for the Elimination of Violence Against Women

National Hug Your Boss Day

National Boss’s Day

How To Handle A Difficult Boss

Eliminating Stress By Defeating Sexual Harassment In The Workplace

Sexual Harassment Awareness Week

 

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Written by Beverly Beuermann-King

Building Resiliency Through Stress and Wellness Strategies. Stress and resiliency strategist, Beverly Beuermann-King, CSP, translates current research and best practices information into a realistic, accessible and more practical approach through her dynamic stress and wellness workshops, on-line stress and resiliency articles, books, e-briefs and media interviews.

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