Thursday, April 22, 2010

Sex and Violence in the Workplace

Did the subject line get your attention? Yep, employment law is getting a whole lot more interesting. (I was at a conference last year where a speaker introduced the topic as "Violent sex in the workplace". Way to sensationalize.)

The following is going to be very important for employers to know, because there's a whole new list of obligations for them to fulfill. But as important as it is for an employer to know its obligations, it's equally important for employees to know their rights.

Effective June 15, 2010, Ontario's Occupational Health and Safety Act is being amended to include protection against harassment and violence in the workplace. So what's this about? Are employers now prohibited from using violence to get their employees in line?

It goes a step further than that, really. An employer is obligated, and has always been obligated, to provide a safe and healthy working environment for its employees. The amendment to the Act incorporates harassment and violence more explicitly, though, and creates new obligations for employers in ensuring such safety.

First, let's go through an overview of the law as it exists now, and up to June 15, 2010:

You have the Human Rights Code, which obliges employers to provide a working environment which is free from harassment or discrimination on the basis of Code grounds (race, gender, disability, and others). This doesn't expressly require employers to have discrimination/harassment policies under most circumstances, but it becomes practically necessary for larger employers to have such policies. Still, there's no prohibition against discrimination or harassment simpliciter; only a prohibition against discrimination and harassment on the grounds identified in the Code. So if, for example, someone harasses you because you shop at Metro instead of Sobeys, then that isn't generally going to cause any problems for which you would have recourse under the Human Rights Code.

You have the Occupational Health and Safety Act, which obliges employers to provide a safe and healthy working environment. This has, on rare occasion, been extended to cover matters relating to emotional health. For example, the TTC had a pretty harsh arbitral decision go against them in 2004, when a supervisor engaged in a campaign of harassment against an employee because of what ultimately boiled down to a personality conflict. The TTC didn't have any policies expressly prohibiting non-Code-related harassment, and the collective agreement with the union didn't require it. However, the arbitrator reached out to the OHSA in order to find a remedy for the employee, because the consequences to the employee's emotional health were so severe.

That sort of circumstance, however, was rare. And it looked really out-of-place in case summaries under the OHSA: You go down the page and see that a person was killed, a person lost a limb, a person lost several limbs, a person was rendered a quadriplegic, a person was severely and permanently mutilated...and then there's the TTC case which involved a worker who became depressed. Not to minimize the debilitating nature of depression in many cases, but the problem is that it is clear that the existing OHSA is simply not constructed to deal with that sort of case.

Likewise, it isn't unheard of for an employer to be held accountable under the OHSA for workplace violence. Take CAMH, for example, an organization directed to helping people with mental health issues. Invariably, CAMH will end up with some patients with violent tendencies. In 2007, a patient assaulted several nurses, and due to a problem with the security layout of the building, victims ended up being secured in the same room as the assailant, while security staff couldn't get in. CAMH was fined $70,000 under the OHSA.

There's another recent example of workplace violence which got some notoriety: At a hospital in Windsor, a doctor and a nurse had been involved in a romantic relationship. After she broke it off, the doctor stabbed her to death in the hospital, and later committed suicide. Tragic circumstances, and we can't help but think that it should have been preventable.

But if the OHSA already requires employers to protect employees from violence and harassment, what do the new amendments do?

Well, effective June 15, 2010, employers will be obligated to take positive preventative action to deal preemptively with violence and harassment. This means that employers are obligated to conduct an assessment of risks of workplace violence, and put in place policies and programs to prevent and address violence and harassment.

Yes, that's right, the new law actually requires employers to have policies. Before, it was just a really good idea. As of June 15, 2010, an employer who falls within the scope of the OHSA (which is almost any employer within Provincial jurisdiction) who doesn't have policies addressing violence and harassment is actually breaking the law.

For some employers, that will be reasonably easy. With an HR infrastructure, existing harassment/discrimination policies, etc., all you really need to do is make fairly minor amendments to your existing policies, conduct the violence assessment, and implement any changes necessary to reduce risks identified in the assessment.

But for smaller employers who don't have HR professionals on staff, and who have never created an employment policy, that's more difficult. Quite an onerous obligation, actually. My recommendation to employers is that they retain the services of a qualified Human Resources consultant or lawyer to guide them in drafting and implementing their policies.

Make sure it's done, because otherwise you could be in trouble. But what's more, make sure it's done right. Historically, whenever there was a workplace accident, the employer took the blame and had to pay out (and these fines are seldom smaller than $50,000, and can be substantially higher). Basically, the Ministry looks at all the contingencies that the employer should, in retrospect, have evaluated beforehand, and finds that they're liable because of the failure to do so. My expectation is that, moving forward, whenever any employee is injured in a violent incident, employers will be under a similar microscope. The question will be: Did you fail to identify a risk in the workplace and take proper steps to protect your employees?


This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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