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“It’s never okay”

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I set aside some time this weekend to review the Ontario Government’s action plan to stop sexual violence and harassment, released on Friday, March 6, 2015, and it occurred to me that this seemed a particularly significant thing to be doing on International Women’s Day yesterday.

According to the Government, 28% of Canadians say that they have been on the receiving end of unwelcome sexual advances, requests for sexual favours, or sexually-charged talk while on the job.  This would certainly seem true anecdotally, as virtually every woman with whom I have spoken about this issue has experienced some form of sexual harassment in her professional working life.

One of the very first cases I ever worked on when I was an articling student over 20 years ago involved allegations of sexual harassment brought by female crown attorneys against a then Provincial court judge. This was a stark wake-up call for a young, female lawyer, newly-called to the bar.  My first exposure to this behaviour as a lawyer was days spent in court, listening to these women’s experience of sexualized comments and conduct to which they had been subjected at work. Now here we are, 20 years later – not only still talking about this, but still looking for legislative answers.

It’s not as though victims of sexual harassment have not had legal recourse.  Sexual harassment has been prohibited by human rights legislation for years and workplace victims of this behaviour can pursue a remedy through the human rights process. However, we know from the Ontario Human Rights Legal Support Centre that, of the 1,173 calls about sexual harassment received in the fiscal year ending March 31, 2014 (that’s three a day across the province of Ontario), many chose not to pursue any recourse beyond the initial phone call, for fear that raising the issue would compromise their job or job security in some way.

The Ontario Government says that four-in-five of the Canadians who said that they had unwanted experiences in the workplace did not report this behaviour to their employers. So something in the current system isn’t working. As such, the Government is proposing changes for employers, specifically the following:

  • Introducing legislation to strengthen the Occupational Health and Safety Act and include a definition of sexual harassment;
  • Including explicit requirements in the OHSA that employers investigate and address workplace harassment;
  • Creating a new Code of Practice for employers under the OHSA that will describe steps that they can take to comply with the law;
  • Establishing a special enforcement team of inspectors trained to address complaints of workplace harassment (including sexual harassment) and enforce the OHSA’s harassment provisions; and
  • Developing educational materials to help employers create safer workplaces, free of harassment.

One of the other reasons why the Government’s new action plan is interesting is that, in addition to strengthening workplace laws and working to provide better supports for victims of sexual violence and harassment, it also appears to be focused more holistically on programs designed to change attitudes and prejudices before they are formed, both in terms of public awareness and education initiatives.

While it remains to be seen what these specific changes will look like and how effective they will ultimately be, it is certainly interesting to see that there appears to be some recognition that the current legal framework in place has not done enough to eradicate the prevalence of sexual harassment in the workplace. Whether these changes are being undertaken because we have the first female Premier of Ontario, or whether this is just in response to the high profile nature of recent cases of sexual harassment in the media, if the end result improves the working lives of Ontario employees, then this is definitely something worth celebrating.

Christine Thomlinson

About the Author: Toronto Employment Lawyer Christine Thomlinson is a co-founder and co-managing partner of Rubin Thomlinson LLP. Appearing regularly on Best Lawyers and Leading Practioners lists in Canada, Christine is known for her high capability to think strategically, and her ability to find practical, often innovative, legal solutions to her clients’ challenging workplace issues.