Conducting Harassment Investigations under the Human Rights Code and Ontario's New Bill 132
Recent high-profile reports on sexual harassment in the Canadian Forces, the Royal Canadian Mounted Police and the CBC raise important concerns about organizational responses to sexual harassment. At the same time, the Bill 132 amendments to Ontario's Occupational Health and Safety Act (OHSA) create new obligations on employers responding to sexual harassment. These developments highlight the importance of fair and effective investigations of allegations of sexual harassment. Drawing from recent high-profile reports as well as from their own professional experience, experts will guide workshop participants through the key steps and essential considerations in conducting effective investigations that comply with the requirements of the Human Rights Code and OHSA. Issues to be addressed include:
The legal framework:
- How do the Bill 132 amendments to Ontario's Occupational Health and Safety Act alter employers' legal obligations regarding harassment and sexual harassment? How do the new obligations under OHSA interact with long-standing obligations under the Human Rights Code? What policies and collective agreement provisions are workplace parties drafting to respond to these legal obligations?
- How should workplace policies be crafted to meet the Bill 132 requirement to provide procedures for workers to report harassment to a person other than the employer if the employer is the alleged harasser? Will smaller employers be required to hire a third party to review, and possibly investigate, complaints?
- Must employers investigate all complaints of harassment? Can they ignore "stale" complaints or those that seem unfounded? What obligation is there to investigate possible "systemic" issues without a formal, specific complaint?
- How much information about an incident or complaint of harassment can be kept confidential? How much disclosure is necessary for the purposes of investigating the complaint or taking corrective action?
- What are the essential qualities or qualifications of an investigator? What circumstances are likely to trigger the Ontario Ministry of Labour's exercise of its new power to order an employer to have an "impartial person" conduct a harassment investigation? Does caselaw regarding the duty under the Canada Labour Code to appoint a "competent" and therefore impartial person to investigate allegations of workplace violence provide any guidance to provincially-regulated employers seeking to avoid such an order?
- What measures and procedures should be put in place to protect complainants (and witnesses) against reprisal or further harassment during an investigation?
- What role should a union take in an investigation? Do the Bill 132 amendments to OHSA alter the union's role?
- How can a union meet its duty of fair representation when both the complainant and alleged harasser are union members?
- Do employees being interviewed during an investigation have the right to union representation? If so, what is the proper scope of that representation?
- What types of electronic searches, such as cell phone record searches and e-mail searches, can be conducted as part of the investigation?
- How, if at all, will the law regarding disclosure of investigation reports be altered by the Bill 132 obligation to inform the complainant and alleged harasser of the results of an investigation and any corrective action taken?
- What role, if any, do investigator recommendations play in determining an appropriate remedy? Can the employer ignore these recommendations? Modify them?
E-mail Roshien Asanta or call (416) 977-6618 for more information. We can help to tailor a Customized Training package for you.
Includes materials, with case summaries and analyses, prepared by Lancaster's legal staff.