Sexual Harassment At Workplace In Canada: Legal Framework And Employer Responsibilities

A   strong paper topic is one in which there are divergent viewpoints among Canadian courts, employers, academics, or labour unions. I suggest choosing a topic that is both in the news in the past year as well as researched sufficiently that there are papers in respected academic journals.       
• Feel free to choose another topic on your own. Some possible topics include:
o Diverse Sexual Orientations in the Workplace in Canada: How Can Canadian Courts Balance the Rights of LGBTQI People with the Beliefs of Certain Religious Groups
o The Duty of the Employer to Accommodate Serious Illness: Is it Fair to Employers and Co-Workers to Keep a Job Open for Years for a Sick Employee.

o Temporary Foreign Workers in Canada: Should the Federal and Provincial Governments Expand Employer Access to the TFW Program?
o Employer Liability for Sexual Harassment in the Workplace: Should Employers be Liable for the Actions of Employees that are outside the scope of employment?
o Mandatory Drug Testing in the Workplace: Should Employers Implement Wider Drug Testing in the Workplace?
o Mandatory Retirement in Canada: Should Employers be able to Force Older Employees to Retire?
o Integrating New Canadians into the Workplace: Should Government or Industry Groups Institute Affirmative Action Programs?
o The Non-Solicitation Clause in the Employment Contract: How Should Courts Balance the Rights of Employees to Change Jobs with the Importance of Intellectual Property Protections for Businesses?
o Conduct in the Public Sphere: Should Employers be able to Discipline or Terminate Employees for Conduct Outside of the Work Place?

o Enough Severance: What is a Fair Amount of Severance Pay in Cases of Unfair Dismissal?
• Ultimately, you have to ask yourself two questions about your chosen topics:
o Does this topic interest me enough to research it for an entire academic term?
o Is there sufficient material to write ten pages on the topic?
• Make sure that your topic is relevant to Canada. Many sources discuss American employment laws, which are different than Canadian employment laws. I practise law in both Canada and the United States, so I will be able to tell when you are actually writing about American law.
• You will not gain or lose points if I personally agree or disagree with your opinion; your points will be based on the quality of your research and argument. 

Legal Framework or regulations to be complied by an employer

‘Irrespective of existence of different views relating to often controversial issue of sexual harassment at workplace, it is an issue which requires appropriate attention. Moreover, increase in information relating to same will assist employees in facing these issues as well as enhance awareness regarding same.’

With accordance to section 247.1 of Canadian Labour Code the sexual harassment refers to any conduct, statement, gesture or contact of a sexual nature:

1. That is potentially to cause offence or mortification to any worker
2. Which may be on rational causes, be alleged by that worker as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.

As per study of Blanpain and Bisom-Rapp (2014), the section 247.2 of Canadian Labour Code specifies that worker is entitled to employment free of sexual harassment.  In addition to this, under section 247.3 it is specified that every manager should make all possible actions in order to make sure that no worker is subjected to sexual harassment.

With accordance to Bartlett Rhode and Grossman (2016), the Ontario Human Rights Code is a law in the Canadian provision of Ontario which provides equal rights as well as opportunities to all individuals with no discrimination in particular areas for example housing and services. Further, the main objective of code is to remove harassment and discrimination on the basis of colour, sex, disability, belief, age and so on. Further, the same is required to be followed by every Canadian organization.

Legal Framework or regulations to be complied by an employer:

Policy concerning workplace harassment

According to Occupational Health and Safety Act (OHSA), it is the duty of employer to make the policy related to sexual harassment in the company (Clément, 2016). The same will promote working environment of dignity and respect and assists keep Ontario’s working health and safe.  Every employee should know what workplace harassment is and how to report about the same. Moreover, employers must support employees to take action against sexual harassment through reporting about the same. If employee not reports against sexual harassment than actions cannot be taken for it due to which there are chances of occurrence of it again in future.

Evolvement of program to prevent harassment at workplace

Collier and Raney (2018), asserts that, in order to execute workplace harassment policy, employer should create and maintain a written harassment program. Furthermore, employer has to discuss about the program which they are going to implement in the organisation with health and safety representative as obliged by OHSA.

Accomplishing responsibilities of employer regarding workplace harassment

It is stated by Holland and Cortina (2016), that, employer should make sure that proper investigation related to incidents and complaints regarding workplace harassment are exercised. With the assistance of same sexual harassment at workplace can be secured. In addition to this, the employer should also consider that investigation is proper in the conditions.

Providing Information regarding harassment policy and program to employees

It is very significant that the employees of organisation should be provided with instructions related to reporting about sexual harassment along with information regarding policy and program which is created to prevent harassment (Holt and Allen, 2015). Along with this, the employer should give information as well as directions on what conduct is conduct is considered workplace harassment entailing workplace sexual harassment. Employees should be provided training regarding what conduct is not allowed in the company.

Providing Information regarding harassment policy and program to employees

New legislation has been enforced by central government authorities. If these are passed by the government than it results in intensified responsibilities on federally regulated workers such as banks, airlines, television and radio. Furthermore, in case the employers fails to oblige these obligations than penalties may be charged against them or publicly named, which would signify the first that any Canadian edict would exclusively tires to expose organisations who do not follows their human right responsibilities in significant manner.

Employer

The federal law Canada has made policy regarding employers to develop sexual harassment policy by having discussion with employees at workplace on mandatory basis. Such types of policies are to be developed by having a discussion with employees or with trade union on the behalf of them. Further, the court decisions in Canada enforce liability on employers for sexual harassment by manager, clients, consumers or external parties in case the harassment occurs in the organisation or is related to the performance of worker’s work. The Canadian Human Rights Commission has reviewed the Canadian court’s employer liability standard for cases including sexual harassment at workplace as employers are accountable for occurrence of harassment at workplace.

Moreover, the Supreme Court states that objective of human rights law are to recognise and eradicate inequality. Since the organisation is controlled by employers so they are the only one who can reverse the negative causes of harassment and guarantee a health work atmosphere. Thus, it is the responsibility of employer to make sure that there is no sexual harassment of workers in organisation. In case the harassment takes place, then manger must prove that it carries outs all the potential actions to protect it.

It was concluded by the Supreme Court, in the landmark case of Janzen v. Platy Enterprise, that workplace harassment is a form of sex inequality in employment and breaches human rights legislation (Lakovic, 2017). At the same time current numbers makes it crystal clear that workplace sexual harassment remains one of the very important issue taking place in the organisation. In addition to this, with accordance to World Health Organization (2015), the employer should develop anti-sexual harassment policy and informing the employees of organisation about the same so that such types of issues can be avoided.

Employee

Employers must resolve any redundant behaviour prior to reduce the potential for harassment at organisation to lead to workplace hostility. As per study of LaViolette (2017), occupational Health and Safety Act defines responsibilities of managers relating to harassment in organisation and workplace violence. The issues related to violent acts, sexual acts, sexual stabbing, intimidation and behaviours like pestering are controlled by Canada Criminal Code. Under such situations police must be called. Moreover, harassment might also be an issue which is entailed in Ontario’s Human Rights Code.

Occupational Health and Safety Act (OHSA) describes workplace violence as the applying of physical force through an individual against an employee, which leads to or could cause physical harm to the employee (Lay, Saunders, Lifshen, Breslin, LaMontagne, Tompa and Smith, 2016). The same also comprise:

1. Effort to execute physical force against a worker in organisation which can leads to physical injury to employee.
2. Statement or actions that an employee can sensibly interpret as a risk to exercise physical force against an employee in company which can result in physical harm to worker. In addition to this, it also entails sexual violence against an employee.

Employer Liability for Sexual Harassment in the Workplace

Rao, Sandler, Kelleher and Miller (2015), specifies that, workplace harassment may also include annoying words or activities that are recognised or must be recognise in order to be an offensive, awkward, degrading or undignified to an employee or staff in organisation. The same might also comprises sexual harassment in organisation.

                                                                     Code of Conduct

                          (Source: Employment and Social Development Canada, 2015)

The Ontario’s Human Rights Code includes a deeming provision embracing a manager liable for the conduct of its administrator, official, worker or agent in the course of their performance (Tompa, Kalcevich, Foley, McLeod, Hogg?Johnson, Cullen and Irvin 2016). Although, the provision not facilitates the freedom from harassment in the company that is sexual harassment as well as sexual solicitation and liberty from retaliation related to sexual solicitation.

Hence, it is considered that there is no accountability on manager for unlawful activity under the issues related to sexual harassment in these remedies sections. In the Ontario code, the protest should be done personally against the person who is indicted of unpleasant conduct. Furthermore, the central legislation, enables a due diligence protection to be raised against claim of explicit liability (Refinetti, 2018). There are some provisions which are to be kept in mind by employer and they are:

1. Did not consent to questioned conduct.
2. Taken into utilisation all possible actions in order to avoid sexual harassment
3. Should apply all activities through which the effects can be evade or minimised.

With this, the analysis of employer’s accountability regarding to a protest of pure sexual harassment under managerial procedure does not ends up here and is extended in another context also.  

The concept of organic liability gives a quarrel that the managerial organisation is accountable for execution of principals. Further, it is diverse from vicarious accountability. With accordance to this hypothesis, legal entity could only act through its principals. Thus, as Roehling and Huang (2018), specifies that, the organisation will be held accountable for this type of application of principals or its directing mind in sexual harassment case or same cases where the edict provides provision of accountability related to employer does not applicable.

It can be assessed that establishing employer liability for a sexual harassment allegation due to the presence of poisoned work environment. The same is not exempted from the deeming provisions of Ontario Code. Management workers who fail to take remedial action to avoid this type of work atmosphere and the corporation might both be liable for contravention of this obligation (Sheehy, 2015). Furthermore, in essence, an organisation which has failed to deal with code violations prevalent in the workplace will take on this liability because to its failure of assuring an appropriate and protected place of work.

After studying all the facts and figures related to sexual harassment at workplace it is observed from the two views employees are superior. The reason behind same is that since the employers has many authorities due to which he feels superior that’s why there are possible chances that they may misuse the their power. Further, the same can be prove by decision of  case of Hingson v Babine Forest Product Ltd and Humpton Lumber Mills Inc., in which the manager worked at sawmill for 34 years before the termination of his employment.

Conclusion

With accordance to the worker, subsequent to sawmill was vend his new manager deliberately engaged in conduct aimed at creating a hostile and miserable work environment with a try to force the worker to resign. But the worker has not resigned due to which his employment was terminated. Thus, in most of the cases it has been assessed the employers have misused their power, thus it is necessary to enhance awareness relating to right available to employees regarding issues sexual harassment so that they know regarding the manner in which they are required to act in such circumstances.

Conclusion 

Subsequent to having the discussion on the rights and responsibilities of employees as well as employers it can be concluded that sexual harassment at workplace is not a new subject issue. It is the responsibility of employer to ensure harassment free organisation so that the company can operate in efficient manner as these types of issues spoils the entire environment of firm. Thus, awareness regarding sexual harassment rights to employees and obligations to employers in required to be enhanced in significant manner.

Furthermore, existence of harassment at workplace brings adverse effects for firm. In order to avoid the harassment at workplace, policies and programs should be developed and implemented in the company along with providing training for the same. Along with this, employees should not be silent if any unfair treatment is faced by them as id the action is not taken against the same the same will repeat and the issue will never be solved.  

Moreover, if sexual harassment takes place in the organisation than it is the duty of employer to have a investigation and taking the decision after that only. Hence, the employer must exercise every potential action to evade such type of issue at workplace. It also has been assessed that employee view is superior in comparison to employer as there are chances of misuse of authority by employer.

References 

Bartlett, K. T., Rhode, D. L., & Grossman, J. L. (2016). Gender and law: Theory, doctrine, commentary. Wolters Kluwer Law & Business.

Blanpain, R., & Bisom-Rapp, S. (2014). Global Workplace: International and Comparative Employment Law Cases and Materials. Wolters Kluwer Law & Business.

Clément, D. (2016). Human Rights in Canada: A History. Wilfrid Laurier Univ. Press.

Collier, C. N., & Raney, T. (2018). Understanding Sexism and Sexual Harassment in Politics: A Comparison of Westminster Parliaments in Australia, the United Kingdom, and Canada. Social Politics: International Studies in Gender, State & Society, 25(3), 432-455.

Employment and Social Development Canada (2015). [ONLINE]. Available through < https://www.canada.ca/en/employment-social-development/corporate/code-conduct.html >. [Accessed on 4^th December 2018]

Holland, K. J., & Cortina, L. M. (2016). Sexual harassment: Undermining the wellbeing of working women. In Handbook on well-being of working women (pp. 83-101). Springer, Dordrecht.

Holt, A. S. J., & Allen, J. (2015). Principles of health and safety at work. Routledge.

Jain, H. C., Sloane, P., & Horwitz, F. (2015). Employment Equity and Affirmative Action: An International Comparison: An International Comparison. Routledge.

Lakovic V.I., (2017). Employer Liability for Sexual Harassment. [ONLINE]. Available through < https://canliiconnects.org/fr/commentaires/46666#_ftn1>. [Accessed on 4th December 2018]

LaViolette, N. (2017). SEXUAL ORIENTATION, GENDER IDENTITY AND THE REFUGEE DETERMINATION PROCESS IN CANADA. Annals of Spiru Haret University, Journalism Studies, 18(1).

Lay, A. M., Saunders, R., Lifshen, M., Breslin, C., LaMontagne, A., Tompa, E., & Smith, P. (2016). Individual, occupational, and workplace correlates of occupational health and safety vulnerability in a sample of Canadian workers. American journal of industrial medicine, 59(2), 119-128.

Rao, A., Sandler, J., Kelleher, D., & Miller, C. (2015). Gender at work: Theory and practice for 21st century organizations. Routledge.

Refinetti, R. (2018). Sexual Harassment and Sexual Consent. Routledge.

Roehling, M. V., & Huang, J. (2018). Sexual harassment training effectiveness: An interdisciplinary review and call for research. Journal of Organizational Behavior, 39(2), 134-150.

Sheehy, E. A. (2015). Sexual assault in Canada: law, legal practice and women's activism (p. 836). University of Ottawa Press/Les Presses de l’Université d’Ottawa.

Tompa, E., Kalcevich, C., Foley, M., McLeod, C., Hogg?Johnson, S., Cullen, K., ... & Irvin, E. (2016). A systematic literature review of the effectiveness of occupational health and safety regulatory enforcement. American journal of industrial medicine, 59(11), 919-933.

World Health Organization. (2015). Sexual health, human rights and the law. World Health Organization.