Bill 132: What You Need to Know

BILL 132: WHAT YOU NEED TO KNOW

Natalie C. MacDonaldRudner MacDonald LLP

28% of Canadians have experienced sexual harassment at work or in a work-related function

48% of people who have been harassed experienced 2-5 instances

25% of Canadians sexually harassed at work felt management was unresponsive and dismissive

75% of Canadians think workplace sexual harassment needs more attention

Serious and impartial investigations + appropriate action took place 40% of the time

WHAT HAPPENS IN THE WORKPLACE?

**Source: Angus Reid Institute

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WHAT IS BILL 132?

Inclusion of sexual harassment in the definition of workplace harassment

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“Workplace Harassment” means:

a) Engaging in course of vexatious comment or conduct against a workplace that is known or ought reasonably to be known to be unwelcome; or

b) Workplace sexual harassment means:

DEFINITIONS

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a) engaging in 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 advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows/ought reasonably to know that the [gesture] is unwelcome

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BUT

A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.

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NEW EMPLOYER DUTIES

CRITICAL

reate Written Policy

etain Records

nvestigate Harassment Complaints

rain Employees

dentify what is/is not harassment

ommunicate findings

lert Workplace

ive your Policy

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C REATE WRITTEN POLICY

1. Mission Statement

a) To whom does it apply?

b) The Company Commitment

c) Encourage Reporting

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2. Elements Of Policy

a) Company’s commitment

b) Definition of Workplace Harassment

c) Definition of Workplace Sexual Harassment

d) Examples of both

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e) Harassment by Outsider

f) Workplace Violence

g) Domestic Violence

h) History of violent behavior

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i) Witnessing Violent Behaviour

j) Reporting It

k) Investigating It

l) Sanctions

m) Confidentiality

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n) Appeals

o) Maintenance of records

p) Protections Against Retaliation

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q) False Accusations

r) Investigations Without Complaints

s) Education & Training

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R ETAIN RECORDS

• Maintain investigation-related documents for at least one year

• We recommend at least 2 years

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I NVESTIGATE HARASSMENT COMPLAINTS

1. Meeting With The Harassee

a) Listen to complaint

b) Take notes

c) Ask for witnesses/documentation

d) Summarize complaint and get signed

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2. Determine Whether 3rd Party Or In House Investigation

- Review with counsel

3. Communicate In Writing With Both

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4. Meet With Alleged Harasser

a) Listen to Response

b) Take Notes

c) Ask for Witnesses/Documentation

d) Summarize Explanation and Get Signed

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5. Review Documentation

6. Meet With Witnesses

a) Listen to their response- Hearsay or Observation

b) Take Notes

c) Ask for other witnesses/documents

d) Summarize and Get Signed

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7. If Witness Not Named By Anyone, But Could Be Critical, Ask That Person

8. Communicate With Harassee And Harasser

9. Conclude Investigation In Writing

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10. Communicate With Both

“the information should be appropriate to the circumstances”

Outline preventative steps of company (a.k.a. MOL)

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a) Results

b) What Action Taken

c) When

d) Reminder of No Repirsal

e) Preventative Steps

T RAIN EMPLOYEES Formal training better than general

letters/policies

Make training appropriate to duties/responsibilities of employees – E.g. more training for managers and supervisors on

responding and recognizing harassment

Investigation training mandatory for anyone conducting

New employees should be trained ASAP after joining

Written: Sign off by employee of having completed training

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I DENTIFY WHAT IS/IS NOT HARASSMENT

Degrading Jokes

Dirty Looks

Isolation

Patterns

Imitating Speech

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Unwelcome flirtation

Offering benefits for sexual favours

Display sexually offensive materials

Persistent, unwanted attention

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Physical Contact

Leering, whistling

C OMMUNICATE FINDINGS • Information provided should be appropriate

to circumstances

• No need for specific details or report – general summary adequate

• Provide complainant with company’s intended future preventative steps

• More detail for situations that need strong action e.g. changing shifts, removal of a person from premises

A LERT WORKPLACE

a) Post Copies of Workplace Policy

i. Physical and/or

ii. On Website for Employees

L IVE YOUR POLICY

1. Know It

2. Train on It

3. Adhere to It

FAILURE TO COMPLY?

SIGNIFICANT LIABILITY!

1. MOL Inspector-ordered third party investigations at employer’s expense

2. Extraordinary Damages

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EXTRAORDINARY DAMAGES

Moral Damages

Punitive Damages

Tortious Damages

Human Rights Damages

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Natalie C. MacDonaldRudner MacDonald LLP

[email protected]