The Ontario Government recently introduced Bill 132. Bill 132 is an amendment to the Occupational Health and Safety Act (the “OHSA”). The Bill amends the definition of “workplace harassment” to include workplace sexual harassment. Because this is an amendment to the Occupational Health and Safety Act (OSHA) and provides a definition of sexual harassment.
The Ontario Ministry of Labour will be doing a second, follow up blitz for employment standards. In addition, they will be doing a blitz on mandatory education and training for workplace health and safety. This list is right here. You can read it yourself. With the WPV SimpleCompliance software it is so easy and inexpensive to stay compliant and we can help you with these audits. So many businesses define insanity - they keep doing the same thing over and over again and hope for a different result. It reminds me of the line by Albert Einstein. When asked what is the difference between genius and stupidity, he responded that genius has limits! I know for #smallbusiness it is enough just to survive, so why not find inexpensive tools to help make your compliance simple. It is a LOT cheaper than either a lawyer or a fine. Less time consuming too.
I wish I was more surprised at this. The Ministry of Labour in Ontario during a recent blitz fined 78% of the businesses they inspected for employment standards violation. This is the price of being reactive instead of proactive. It is very difficult to run a business and to be aware of what it takes to be compliant. That is why we created WPV. The biggest problem with so many businesses is that they are reactive and not preventative. Eventually it comes back to you. The idea that 'we can't afford' prevention means you will be paying a larger price later for reaction. That price does not only come in government fines during blitzes but also manifests itself in lawsuits and tribunal hearings. This doesn't even account for the price in terms of hours, loss of productivity and stress in having to defend yourself and your business. As the saying goes - an ounce of prevention is worth a pound of cure. People really don't think they are going to get caught. The problem with that is that experience has shown that, over time, we all are held accountable. Ignorance of the law is no excuse!
Great article in Small Business magazine about the most common lawsuits in business. I am sure you can guess what they mainly revolve around. One thing to think about is that a workplace lawsuit not only costs an organization tens of thousands of dollars in legal fees, but it also has a direct cost in productivity, time and stress. As they say - an ounce of prevention is worth a pound of cure.
One of the most difficult areas for an investigator, much less a manager, to discern is when a situation escalates to the level of harassment. Normally harassment means that more than one event has taken place that, through repetition, is intended to torment, undermine, frustrate or provoke a reaction from that person. It is the repetition itself, more than a single event, that creates the harassment. For instance, John calls Jane 'stupid' for something she has done. If it was a one time only matter, it would not be considered harassment. If, however, John kept calling Jane stupid all the time and.or constantly belittles her in public , it would be considered harassment. By calling her stupid repeatedly, John is either tormenting or undermining her through repeated action.
A single incident, however, can be considered harassment when it is shown to have a a severe, significant and lasting impact on the individual. An example of this may be a direct threat of retaliation against the individual if they do not do something. For instance quid pro quo, which is a form of sexual harassment, takes place when a person in power expects sexual favors in return for special treatment. This single incident would be considered sexual harassment. Another example of a single incident being considered harassment is when there is a threat of physical or psychological violence. I'm going to kick your butt if you don't do something or Maybe I'll tell so and so what you said about them would constitute harassment.
What Constitutes Harassment
A useful guide to help understand harassment can be found from the Canadian government. In order to claim harassment, all of the following conditions must be met:
The respondent displayed an improper and offensive conduct including objectionable acts, comments or displays, or acts of intimidation or threats, or acts, comments or displays in relation to a prohibited ground of discrimination;
The behavior was directed at the complainant;
The complainant was offended or harmed, including the feeling of being demeaned, belittled, personally humiliated or embarrassed, intimated or threatened;
The respondent knew or reasonably ought to have known that such behaviour would cause offence or harm;
The behaviour occurred in the workplace or at any location or any event related to work, including while on travel status, at a conference where attendance is sponsored by the employer, at employer sponsored training activities/information sessions and at employer sponsored events, including social events; and
There was a series of incidents or one severe incident which had a lasting impact on the individual.
It is important to note that in the case of sexual harassment , a single incident may be viewed to be more significant when the relationship at work is one where the person accused of harassment has influence or power over the person making the accusation with regard to career advancement, performance review, absenteeism, day to day management of activities, work assignments and the carrying out of progressive disciplinary measures.
What Does Not Constitute Harassment
Just as it is important to understand what constitutes harassment, it is also important to understand what does not constitute harassment. Here is a partial list of some of the things that do not constitute harassment:
Management's right to manage. This means that management does have a right to manage such things as the day-to-day operations, work performance, absenteeism, delegation of tasks, reference checks, the application of discipline, up to and including termination.
Workplace conflict. People argue and have differences. Conflict alone does not equal harassment. The catch here is that if no steps are taken to resolve the conflict, it could easily lead to harassment.
Work related stress. Sometimes there is increased stressed at work and nerves may be frayed. Although the accumulation of stress factors may increase the risk of harassment, a stressful work environment does not constitute a form of harassment.
Difficult conditions of employment. Some jobs and professions are by their nature difficult and may create conflict. This is especially true during times of change when a number of issues arise.
A single or isolated incident. This may be an isolated inappropriate remark or having an abrupt manner.
A social relationship welcomed by both individuals. The key part of sexual harassment is that it is unwelcome attention by the complainant. An office romance that goes bad does not constitute harassment unless it was done so under duress or threat.
Friendly gestures among co-workers such as a pat on the back. In a number of cultures a kiss on the cheek is a form of greeting. This in and of itself does not constitute harassment.
Some Questions to Ask Yourself
Here are some good questions to ask yourself if you think you are being harassed (h/t Government of Canada):
What was the context in which the incident(s) took place?
Was the behavior improper?
Was the behavior directed at me?
Was I offended by the behavior?
Did the incident occur within the scope of the Policy?
Was this the first incident or is it a series of incidents?
What is my work relationship with this individual?
Are individuals doing things, saying things to make me feel uncomfortable?
Would a reasonable person well informed of all the circumstances and finding himself or herself in the same situation as yours view the conduct as unwelcome or offensive? The behavior in question is not only assessed by the impact or effect on yourself, but it is also assessed against a reasonably objective standard.
Did the behavior exceed the reasonable and usual limits of interaction in the workplace? Would a reasonable person be offended or harmed by this conduct?
As I describe and evaluate my work environment, are there other factors contributing to the situation (level of stress, workload, professional constraints, etc.)?
Am I being singled out and treated differently than my colleagues, being given the “silent treatment”?
Is the incident related to my work performance?
Am I being criticized regularly even though my standards have not changed and my performance has always been satisfactory or better?
Am I being blamed for mistakes I believe are not my fault?
What impact(s) and/or consequences did this incident(s) have on me?
Are the working relationships different from any I have previously experienced?
Are individuals putting me at risk in some way?
How would this behavior be perceived by other work colleagues?
Are there other factors in my life that could impact on my reaction to this event?
Is this usual behavior for the individual? Are there any personal or professional circumstances that are contributing to his/her behavior?
Have I spoken to the individual and tried to clarify the situation? Have I informed him/her of the impact the situation has had on me?
Have I asked him/her to stop the behavior?
Has the other person expressed regrets and stopped or has the behavior continued?
Have I considered resolving the situation through informal means of conflict resolution, such as a facilitated discussion, coaching or mediation?
If I choose to file a complaint, will it be done in good faith, characterized by the intention to honestly inform?
In conclusion, it is important to remember that an allegation of harassment is a serious matter. In order to properly assess the situation, you have to understand what harassment is and is not to understand if you have fallen victim to it.