This blog was written by Flora Vineberg of SpringLaw – a Canadian virtual law firm that advises on workplace legal issues. Visit their website at springlaw.ca to learn more about their firm and resources available, including their award-winning blog.
Introduction: Part 1
In the wake of the #MeToo era, a burgeoning consciousness has grown around the existence of and need to address sexual harassment and sexual assault in the workplace. Individuals of all genders and orientations have found the courage to come forward, and legislation in Ontario has made it mandatory for employers to sufficiently investigate these allegations in a timely and comprehensive manner. Trauma-informed Workplace Investigations inherently require a sound understanding of power dynamics and nuanced forms of sexual harassment. New hybrid work models pose unique obstacles for enforcing cyber-bullying and anti-discrimination/harassment policies, and have brought to the forefront the importance of building a workforce predicated on respect, plurality, accountability, legal compliance, and employee well-being. As part of this, employees who experience sexual assault and/or harassment in the workplace may have different legal options at their disposal.
In Part 1, we begin here with a review of three possible options.
File a Workplace Complaint
While employers are obligated to investigate all allegations they knew or ought to have known about – negating the requirement that a formal complaint be made in order for an investigation to be required – there is often a benefit to making a formal complaint to your HR department and/or through the appropriate channels. The steps to make a complaint should have been outlined to you as part of your on-boarding and training process. Often these are contained in a Respect in the Workplace or Anti-Harassment Policy. Filing a formal complaint keeps a documented track record of behaviour, and allows your employer to take steps towards addressing the issues as soon as practicable, in the form of a workplace investigation. This process aims to preserve confidentiality as much as possible and, depending on the nature and complexity of the allegations, should aim to be wrapped up within a 90-day period. If your allegations involve the person(s) to whom you report workplace-related concerns, it is important to inquire about other avenues for reporting and making your employer aware.
If you feel your safety is at imminent risk, making this known to your employer becomes all the more critical. For employers interested in conducting trauma-informed workplace investigations, please see our free webinar on this topic here.
File a Grievance
If you work in a unionized environment, your collective agreement likely contains a clause or provision addressing discrimination and harassment, and outlines the appropriate grievance procedure that may encompass both alternative dispute resolution (“ADR”) as well as other arbitration options. Your Union Representative or Steward is a good resource to discuss options available for filing a grievance related to sexual assault or harassment at work.
File a Human Rights Tribunal Application
The Ontario Human Rights Code bans discrimination based on certain enumerated prohibited grounds, such as sex, sexual harassment, gender identity and expression, for example. The Code also prohibits ‘sexual solicitation’ (seeking a sexual or romantic relationship in exchange for something) while at work or in the process of accessing certain services. If you experience sexual assault, harassment or solicitation at work, you have one year from the time of the event to file an Application to the Human Rights Tribunal of Ontario (“HRTO”), seeking compensation which may include lost wages, general, or human rights damages. The Tribunal can also award other remedial measures to prevent future harassment or abuse, including additional training and revisions to applicable workplace policies.
Conclusion: Part 1
We have addressed three options for pursuing legal redress if you have experienced sexual assault and/or harassment in the workplace. As each option has pros and cons, it is important to seek legal advice prior to determining which may best serve your interests and needs. The help of informed legal counsel can offer additional insight into the processes and procedures required for pursuing legal recourse, and assist you in navigating these channels. Please contact us here for more information.
For Part 2 of this blog, we will continue to explore three additional options for survivors, as well as responsibilities and things to be aware of for employers.
Written by: Flora Vineberg