How the feds' new sexual harassment bill will change the workplace

The federal government introduced legislation last month aimed at eliminating workplace sexual harassment. Following in the footsteps of recent changes to Ontario law, Bill C-65 expands both the definition of workplace violence in the Canada Labour Code and the responsibilities of employers in the event of an incident.

The federal government’s recent public consultation on harassment and sexual violence in the workplace found that 60 per cent of respondents had experienced harassment where they work. Thirty per cent said they had experienced sexual harassment.

Another study, this one by Abacus Data, found that 53 per cent of women in Canada “have experienced unwanted sexual pressure.”

“The prevalence of this behaviour is no doubt in part because it rarely carries consequences for the harasser,” the study says. “The large majority of women, and most men, agree that normally there are no sanctions applied against those who sexually harass women in the workplace.”

But recent developments, which come in the wake of sexual assault allegations against Harvey Weinstein and other high-profile figures, may mark the beginning of a sea change in the way sexual harassment in the workplace is handled.

“We’re seeing high-profile cases of sexual assault in the workplace south of the border, here in Canada,” said Maryam Monsef, federal minister for the status of women, at the press conference announcing the legislation. “This is not anything new, because women have had a long history of speaking out, of speaking up, of standing shoulder to shoulder. But something has changed: More people are listening. More men and gender diverse persons are speaking up. More people are believing. More people are taking action. And people expect governments to lead by example.”

Bill C-65 will apply to federally regulated workplaces — including banks, airports, most federal Crown corporations, and the public service — which account for about 8 per cent of the Canadian labour force.

The draft legislation would change the Canada Labour Code section on occupational health and safety, to protect against not only accidents and injuries, but also “physical or psychological injuries and illnesses arising out of, linked with or occurring in the course of employment.”

“That’s way bigger, that’s a much broader scope,” says Ellen Low, an employment lawyer at Whitten & Lublin in Toronto. “It expands the section to whom this applies … And then the specific duties of the employer, those get expanded as well.”

Specifically, employers would have a responsibility to investigate, record, and report harassment and violence, and support employees who are affected. Until now, there has been no legal obligation for federally regulated employers to deal with sexual harassment complaints, even if inaction could lead to litigation. Bill C-65 takes the procedural onus off the employee and puts it on the employer, says Laurie Jessome, an employment lawyer at Cassels Brock.

Bill C-65 does not lay out specific penalties, such as disciplinary actions or firing, for those found guilty of workplace harassment. Patty Hajdu, federal minister of employment, workplace development and labour, said, when announcing the legislation, that this is the case because workplace safety is the jurisdiction of the employer. But employers who do fail to protect workers from harassment could be subject to sanctions under the Canada Labour Code.

Jessome says that some public sector unions and other stakeholders were disappointed that specific penalties were not prescribed in the legislation, but she herself wasn’t. “I really hope that they don’t go down that road, because that creates tremendous possibility for workplace conflict,” she says. “It raises the stakes for making a complaint like this, and the whole point of this legislation, I think, is to make it easier to bring forward these types of issues. But if you know that that the legislation says that something terrible will happen to the person you’re complaining about, you’re way less likely to do it if you’re focused on workplace harmony.”

Jessome notes, though, that some of the provisions are “vague in a way that’s not necessarily helpful to employers.” For example, the investigation part of the bill requires that a “competent person” investigate each complaint. “For employers of a large size with a real HR department, or an in-house legal department, they will automatically have access to that type of person. For smaller employers, that may mean bringing in an outside resource whom you have to pay. So they may feel that that’s an unfair burden to them.”

Employers will also have to wait for the corresponding regulations to be finalized before they know exactly what this will mean for them — and that could take more than a year, according to government officials.

The bill is now in its second reading in the House, so the text could change in committee hearings before it becomes law.

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