Authors: Stephanie McDonald and Baljinder (Bal) Singh Tiwana
If you are experiencing harassment or sexual harassment at work, you may be experiencing feelings of uncertainty, confusion, and anxiety. This blog is designed to provide clear and practical information for employees facing such challenges, helping you understand your rights and navigate your situation with more confidence.
This article explores the following key areas:
- Defining Harassment and Sexual Harassment in the Workplace
- Understanding Reprisal and Your Legal Protections
- Your Rights if your Employment is Terminated
What are my employer’s obligations?
Pursuant to the Ontario Occupational Health and Safety Act (“OHSA”), employers in Ontario have a legal obligation to provide a workplace that is safe, and free from harassment. This includes the responsibility to:
- Maintain a harassment-free work environment;
- Investigate all complaints of harassment promptly and diligently;
- Implement preventative and corrective measures to eliminate workplace harassment.
OHSA operates in tandem with the Code, which offers broader protections against discrimination and harassment based on specific protected grounds (to prevent unequal treatment of employees), including but not limited to:
- Race
- Gender
- Sexual Orientation
- Gender identity and expression
- Disability
- Religion
- Age
Definition of Harassment
Workplace harassment is defined under the OHSA, as follows:
“..engaging in a course of vexatious comment or conduct against a worker in a workplace, including virtually through the use of information and communications technology, that is known or ought reasonably to be known to be unwelcome..”
It is pertinent to note, that “workplace” extends to work conducted onsite, remotely, and via hybrid working arrangements, and can extend to conduct experienced outside of regular working hours.
Examples of Harassment
- Physical violence
- Threat of violence
- Bullying and verbal abuse
- Offensive remarks
- Unwanted communications
- Stalking
Definition of Sexual Harassment
Workplace sexual harassment is defined under OHSA as the following:
“..(a) engaging in a course of vexatious comment or conduct against a worker in a workplace, including virtually through the use of information and communications technology, 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..”
It is important to note that both harassment and sexual harassment can occur through technology-based communications, such as emails, text messages, social media, or other digital platforms. Harassment does not need to happen in person to constitute sexual harassment under the law.
Examples of Sexual Harassment
- Gender related comments about a person’s physical characteristics
- Unwanted physical contact
- Displaying or circulating explicit material
- Spreading sexual rumours including through electronic communications
- Demanding sexual advances
- Unwanted discussions about sexual activities
What to do if you have Experienced Harassment in the Workplace
If you believe you have experienced harassment or sexual harassment in the workplace, the following steps may help:
- Seek Legal Advice Promptly. Seeking legal advice in early as possible is critical. Expert legal counsel can provide tailored advice based on your unique circumstances and guide you through your legal options, including formal complaints and potential legal claims.
- Review Your Workplace Policy. Under the OHSA, your employer is legally required to implement a workplace harassment policy and complaints procedure. Familiarise yourself with this policy and follow the steps outlined in the procedure.
- Do not resign before getting legal advice. Unless remaining in the workplace poses an immediate risk to your health or safety, do not resign without first consulting a lawyer. Quitting prematurely can affect your legal position and potential entitlement to damages and/or benefits.
- Document the Harassing Conduct Thoroughly. Maintain adetailed writtenrecord of all incidents that transpire, including dates, times, locations, names of individuals involved, direct quotes, summary of conversations, witnesses (if any)
- Preserve All Relevant Evidence. Retain copies of all relevant communications and documentary evidence, such as emails, text messages, WhatsApp messages, social media messages, etc. This evidence can corroborate your claim and substantially strengthen your case.
- Exercise Your Right to Sick Leave (if necessary). If you are required to leave work due to your mental physical health being impacted, you are entitled to sick leave. Your employer cannot prohibit this.
- Obtain Medical Attention and Documentation. Seek prompt medical assistance to promptly assess your condition. Ask your healthcare provider for a medical note e.g. stress induced leave for a defined period. It is important to highlight that your doctor may extend your sick leave if necessary.
- Claim Available Benefits. You may be eligible for income replacement benefits if you take a sick leave including Employment Insurance (sickness), income loss benefits, or a private disability policy: Consult your legal representative or HR department for details.
Reprisal Protections
Employers have a legal obligation to maintain a workplace where employees can raise concerns or harassment and sexual harassment without fear of reprisal.
Reprisal refers to any retaliatory/punitive action taken against an employee because of exercising their legal rights under the OHSA or the Code. For example, punishment following the filing of a workplace harassment or sexual harassment complaint.
Examples of Reprisal
- Termination
- Discipline or suspension
- The imposition of any penalty
- Intimidation or coercion
Termination Following a Harassment Complaint
In Ontario, it is prohibited to terminate an employee for reporting workplace harassment. As outlined above, such conduct constitutes reprisal, which is expressly forbidden under the Occupational Health and Safety Act, and the Ontario Human Rights Code.
If you are terminated after raising a complaint about harassment in the workplace, you may have grounds to pursue a wrongful dismissal or reprisal claim.
We strongly encourage you to contact us immediately to discuss your rights and legal options.
Timely legal advice can help protect your interests and ensure your rights are upheld.
DISCLAIMER: This article/blog is provided for educational/informational purposes only. The views expressed are solely those of the author(s) and should not be attributed to any other party not listed as the author(s).
While reasonable efforts have been made to ensure the accuracy of the content provided, it does not constitute legal advice. Prior to relying on any aspect of this article, you should consult with a suitably qualified legal professional promptly in your relevant jurisdiction, to obtain advice tailored to your individual circumstances
Nothing in this article should be interpreted as forming a solicitor-client relationship or construed as a solicitation for legal services.
