Pandemic or Not: A Reminder of Workplace Harassment Investigation Requirements
By: Jessica Donen
The question of whether an employer is required to conduct workplace investigations into workplace harassment can sometimes be confusing even in the best of times. Now, with the added hurdle of navigating workplace investigations during a pandemic, this question may be even more unclear (our next post will explore some of the unique challenges and practical considerations when conducting a COVID-19 friendly investigation). This blog post serves as a reminder of the statutory framework in Ontario at play that continues to exist notwithstanding the global pandemic.
What is Harassment?
Under the Ontario Human Rights Code (the “Code”), “harassment” is defined as “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”.[i] Similar provisions exists to protect workers from sexual harassment (defined as harassment because of sex, sexual orientation, gender identity or gender expression) and sexual solicitation (or reprisal for the rejection of sexual solicitation).[ii]
The definition of “workplace harassment” and “workplace sexual harassment” under the Occupational Health and Safety Act (“OHSA”) is the same as the definition under the Code.[iii]
The Ontario Human Rights Code
The Code provides that every employee in Ontario has the right to equal treatment in employment based on 15 protected grounds: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, or disability.[iv]
As part of the employer’s duty to ensure that the workplace is free from discrimination, the Human Rights Tribunal of Ontario has ordered employers to pay damages for failing to adequately investigate a complaint of discrimination where discrimination is found to have occurred.[v] To be clear, the Tribunal did not recognize a “freestanding duty to investigate” under the Code.[vi] The damages are not for failing to investigate under the Code per se, but rather for “the failure to provide a workplace free from discrimination, which could be caused or exacerbated by a failure to investigate the alleged Code violation”.[vii] Unless the failure to take a complaint seriously is, of itself, discriminatory,[viii] there is generally no violation of the Code for failing to investigate allegations of harassment that are ultimately found to be unsupported. [ix]
As a practical consideration, however, in most circumstances it is difficult to know whether a complaint of harassment is meritorious prior to investigating. Employers who fail to investigate allegations of workplace harassment do so at their own risk.
The Occupational Health and Safety Act
The OHSA also requires employers to investigate allegations of harassment. Under OHSA, employers are required to develop and maintain workplace harassment and violence policies and develop a written program to implement those policies.[x] Employers must also ensure that an appropriate investigation is conducted into incidents and complaints of workplace harassment. While what is an “appropriate” investigation depends on the circumstances, OHSA requires employers to notify in writing both the complainant and the alleged harasser of the results of investigation, as well as any corrective action that will be taken as a result of the investigation.[xi]
The expectation is that employers should investigate workplace harassment if someone has made a formal complaint or if the employer is otherwise made aware of incidents. Importantly, if an employer fails to comply with the investigation requirements, penalties can include: (i) orders requiring the employer to retain an outside, third party investigator; (ii) prosecutions of up to $500,000 per count; and (iii) personal liability for officers and directors.[xii]
The Takeaway
Regardless of whether a workplace investigation is required or not, as the saying goes, it is better to be safe than sorry. Workplace investigations are almost always preferable both at tribunals and in court. While the cost and time to conduct an investigation is certainly relevant, the potential exposure and liability in not conducting an investigation almost always weighs in favour of investigating.
[i] S. 10, Human Rights Code, R.S.O. 1990, c. H 19 [Code].
[ii] S. 7(2) and 7(3), Code.
[iii] Occupational Health and Safety Act, R.S.O. 1990, c. O.1 [OHSA].
[iv] S. 5, Code.
[v] Scaduto v Insurance Search Bureau, 2014 HRTO 250 at para 78 [Scaduto].
[vi] Scaduto at para 78.
[vii] Scaduto at para 78.
[viii] Ananda v Humber College Institute of Technology & Advanced Learning, 2017 HRTO 611 at para 121: including if the failure to investigate allegations “violates the dignity interests of the person make the complaint”.
[ix] Lindsay v Toronto District School Board, 2020 HRTO 496 at para 24.
[x] S. 32.0.1(1) and 32.0.6(1), OHSA.
[xi] S. 32.0.7, OHSA.
[xii] Ministry of Labour Code of Practice to Address Workplace Harassment under Ontario’s Occupational Health and Safety Act.