Workplace harassment can affect an employee’s ability to perform their job and may create serious concerns about safety, dignity and continued employment. Harassment can take many forms, including repeated inappropriate comments, intimidation, bullying, sexual harassment and other conduct that a worker reasonably knows or ought to know would be unwelcome.
Ontario employers have specific obligations concerning workplace harassment under the Occupational Health and Safety Act (OHSA). Employees who experience harassment should understand how workplace harassment is defined, how complaints can be reported, what an employer’s investigation should involve and what options may be available when the situation is not properly addressed.
What Is Workplace Harassment in Ontario
Under Ontario’s OHSA, workplace harassment means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. The definition includes workplace sexual harassment. A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment under the OHSA.
The circumstances surrounding the conduct can therefore matter. A disagreement with a manager, criticism of an employee’s work or a reasonable management decision does not automatically constitute workplace harassment. Employees should consider the nature, frequency and context of the conduct when assessing a workplace concern.
What Are Examples of Workplace Harassment
Workplace harassment can involve many different types of conduct.
Examples may include:
Repeated insulting or degrading comments
Intimidation or threats
Bullying
Humiliating or offensive treatment
Repeated inappropriate jokes or comments
Sexual comments or unwanted sexual conduct
Persistent unwanted communication
Conduct that targets an employee in a degrading or hostile manner
A single incident may also be serious even though the OHSA definition refers to a course of vexatious comment or conduct. Other laws and legal claims can apply depending on the circumstances.
Employees should not assume that conduct is acceptable simply because it is described as a joke or because other workers have experienced similar treatment.
What Is Workplace Sexual Harassment
Workplace sexual harassment is a form of workplace harassment involving unwanted conduct of a sexual nature.
It can include inappropriate sexual comments, requests for sexual favours, sexualized jokes, unwanted sexual attention or other conduct that is known or ought reasonably to be known to be unwelcome.
Sexual harassment can involve a supervisor, co-worker, customer, client or another person encountered through employment. The circumstances can also involve electronic communications, messages or conduct occurring outside the physical workplace when it has a connection to employment.
Employees experiencing sexual harassment should document relevant incidents and consider reporting the conduct through the employer’s workplace harassment process.
Is Workplace Bullying the Same as Workplace Harassment
The terms workplace bullying and workplace harassment are often used together, but they do not necessarily have identical legal meanings.
Bullying can describe repeated conduct intended to intimidate, humiliate, isolate or undermine another person. Depending on the circumstances, bullying may fall within the OHSA definition of workplace harassment.
However, not every unpleasant workplace interaction is legally considered harassment. Reasonable management decisions, legitimate performance feedback and ordinary workplace disagreements are not automatically harassment.
The specific conduct and surrounding circumstances should be considered rather than relying solely on the label used to describe the behaviour.
Does a Single Incident Count as Workplace Harassment
Workplace harassment under the OHSA generally involves a course of vexatious comment or conduct rather than an isolated disagreement.
However, employees should not assume that a single serious incident is legally irrelevant. Other legal protections may apply depending on what occurred, including laws dealing with workplace violence, discrimination, sexual harassment or other forms of misconduct.
A serious incident should be documented even if the employee is uncertain which legal category applies.
What Is an Employer’s Workplace Harassment Policy
Ontario employers are required to prepare a workplace harassment policy under the OHSA and review it as often as necessary, but at least annually. The policy must generally be in writing and posted in the workplace or made available in an accessible electronic format, subject to the statutory exception for workplaces with five or fewer regularly employed workers unless an inspector orders otherwise.
The policy is intended to explain the employer’s approach to workplace harassment and should form part of the workplace’s broader health and safety system.
Employees should know where their employer’s harassment policy is located and understand how complaints or incidents are supposed to be reported.
What Is a Workplace Harassment Program
The employer’s workplace harassment program is different from the policy itself.
Under the OHSA, the employer must develop and maintain a written program that implements its workplace harassment policy. The program must include procedures for reporting incidents and complaints, including a way to report harassment to another person when the employer or supervisor is the alleged harasser. It must also explain how complaints and incidents will be investigated and dealt with.
The program also addresses the handling of information obtained during an investigation and how the worker who allegedly experienced harassment and the alleged harasser will be informed of investigation results and corrective action.
How Do You Report Workplace Harassment
Employees should review their employer’s workplace harassment program to determine how complaints should be made.
Depending on the workplace, a complaint may be reported to a supervisor, manager, human resources department or another designated person.
If the employer or supervisor is the alleged harasser, the workplace harassment program must provide a way to report the incident to another person.
Employees should consider making important complaints in writing when appropriate and keeping a copy of relevant communications for their records.
What Should You Include in a Harassment Complaint
A useful complaint should explain what happened as clearly and objectively as possible.
An employee may want to include:
The date and approximate time of each incident
Where the incident occurred
Who was involved
What was said or done
Names of witnesses
Relevant emails or messages
How the conduct affected the employee
Whether the conduct was previously reported
How management responded to earlier concerns
Employees should focus on specific facts rather than making assumptions about another person’s motives.
Keeping a chronological record can also make it easier to explain a pattern of conduct when multiple incidents are involved.
Should You Document Workplace Harassment
Documenting incidents can be important when dealing with workplace harassment.
Employees may wish to maintain a record of dates, locations, people involved, communications and witnesses. Relevant emails, text messages, workplace communications and other documents should also be preserved.
Documentation can help an employee accurately describe what happened during an internal investigation and may become relevant if other legal proceedings arise.
Employees should be careful about how they obtain or preserve workplace records, particularly where documents contain confidential information belonging to the employer or other individuals.
What Happens After You Report Workplace Harassment
Once an employer becomes aware of workplace harassment, the OHSA requires the employer to ensure that an investigation appropriate in the circumstances is conducted. This obligation can arise when the employer or supervisor becomes aware of an incident even if the employee does not make a formal written complaint.
The investigation should be prompt, objective, confidential and thorough. The person conducting the investigation should not be involved in the incident or under the direct control of the alleged harasser.
The employer must also provide the worker who allegedly experienced harassment and the alleged harasser, if they are workers of the employer, with written information about the investigation results and any corrective action that has been taken or will be taken.
How Long Should a Workplace Harassment Investigation Take
Ontario guidance states that workplace harassment investigations should generally be completed within 90 days or less unless there is a compelling reason for a longer investigation.
Complex investigations can take longer, particularly when there are numerous witnesses or other circumstances that make the investigation more difficult. The investigation should nevertheless be conducted promptly and appropriately in the circumstances.
Employees can ask for updates when an investigation is taking longer than expected.
Who Can Investigate Workplace Harassment
The person conducting a workplace harassment investigation must be capable of conducting an objective investigation and should not be directly involved in the incident or under the direct control of the alleged harasser.
Depending on the circumstances, an investigation may be conducted by an internal manager, human resources professional or another qualified person. An employer may also use an external investigator, such as a lawyer or other professional with relevant experience.
The appropriate investigator can depend on the seriousness and complexity of the allegations and the structure of the organization.
What If the Person Harassing You Is Your Manager
Employees may face additional difficulties when the alleged harasser is a manager or supervisor.
Ontario’s workplace harassment requirements recognize this problem. The employer’s harassment program must provide a way for workers to report harassment to someone other than the employer or supervisor when that person is the alleged harasser.
An employee may therefore be able to report the concern to another designated person, such as human resources, another manager or another person identified in the employer’s workplace harassment program.
What If the Employer Is the Alleged Harasser
The situation can be more complicated when the alleged harasser is the employer or a senior person within the organization.
Ontario allows a worker to make a complaint to the Ministry of Labour, Immigration, Training and Skills Development in circumstances where the employer is the alleged harasser or where the employer has not met certain obligations under the OHSA. An inspector may, in appropriate circumstances, order the employer to arrange for an investigation by an impartial person.
However, a Ministry inspector’s role is limited. The Ministry can assess whether the employer complied with its obligations under the OHSA, but inspectors do not generally determine whether a specific individual committed harassment or award compensation for the employee’s personal claim.
What If Your Employer Does Not Investigate
An employer is required to ensure that an appropriate investigation is conducted when it becomes aware of workplace harassment.
If an employer fails to conduct an appropriate investigation, an employee may be able to raise the issue with the Ministry of Labour, Immigration, Training and Skills Development. Ontario specifically identifies failure to conduct an appropriate harassment investigation as a circumstance in which a worker may make a complaint to the Ministry.
The Ministry’s role is focused on enforcing the employer’s obligations under the OHSA. An employee seeking compensation or other individual legal remedies may need to consider other legal options depending on the circumstances.
Can You Be Fired for Reporting Workplace Harassment
Employees should not assume that reporting workplace harassment means they have no protection against retaliation.
The OHSA contains protections concerning reprisals, and Ontario provides a process through which workers can raise concerns where they believe an employer has threatened or punished them for exercising rights under the Act.
A worker who experiences a negative employment action after making a harassment complaint should preserve documentation concerning both the original complaint and what happened afterward.
The legal significance of an employer’s response will depend on the circumstances.
What Is the Difference Between Harassment and Discrimination
Workplace harassment and workplace discrimination can overlap, but they are not the same legal concept.
The OHSA addresses workplace harassment through specific employer duties concerning policies, programs and investigations. Human rights legislation addresses discrimination and harassment connected to protected grounds under the Ontario Human Rights Code.
For example, conduct connected to race, disability, sex, sexual orientation, religion, age or another protected characteristic may raise human rights issues in addition to workplace harassment concerns.
An employee may therefore have more than one potential legal avenue depending on what occurred.
What Is the Difference Between Workplace Harassment and Workplace Violence
Workplace harassment and workplace violence are addressed separately under the OHSA, although the two issues can overlap.
Workplace violence involves physical force or attempted or threatened physical force against a worker that could cause physical injury. Workplace harassment focuses on a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
The appropriate response can depend on the nature and immediacy of the risk. Employees facing an immediate threat to their safety should prioritize getting to a safe location and contacting emergency services when necessary.
Can Workplace Harassment Lead to Constructive Dismissal
Serious workplace harassment can potentially contribute to a constructive dismissal claim.
Constructive dismissal generally involves a fundamental change to the employment relationship or circumstances in which the employer’s conduct demonstrates that the employment relationship can no longer reasonably continue.
Not every harassment complaint will amount to constructive dismissal. The seriousness and persistence of the conduct, the employer’s response, the employment contract and the employee’s circumstances can all be relevant.
Employees should obtain legal advice before resigning based on workplace harassment because resignation can have significant legal consequences.
Can You Sue Your Employer for Workplace Harassment
Whether an employee can bring a legal claim depends on the circumstances and the nature of the conduct.
Potential legal issues can involve employment law, human rights law, the OHSA or other areas of law. A workplace harassment investigation under the OHSA is not necessarily the same thing as a civil lawsuit or human rights application.
Employees seeking compensation or another individual remedy should consider obtaining legal advice about which legal process may apply to their situation.
What Should You Do If You Are Experiencing Workplace Harassment
Employees dealing with workplace harassment may wish to take several practical steps.
First, document the conduct and preserve relevant communications. Next, review the employer’s workplace harassment policy and program to determine how incidents should be reported.
If appropriate, report the conduct through the employer’s designated process and cooperate with an investigation. Employees should also be cautious about resigning, signing agreements or making other major decisions before understanding the potential legal consequences.
If the employer does not respond appropriately or the situation raises broader employment or human rights concerns, legal advice may help clarify the available options.
What If a Coworker Is Being Harassed
Employees who witness workplace harassment may also have a role in reporting concerns.
Ontario’s workplace harassment framework allows employer programs to encourage workers to report concerns when they witness another worker being harassed. Employers can become aware of incidents through sources other than the person directly experiencing the conduct.
A witness may therefore consider reporting serious conduct through the workplace’s established process, particularly where the affected employee may be reluctant or unable to make a complaint.
Frequently Asked Questions About Workplace Harassment
What qualifies as workplace harassment in Ontario?
Under the OHSA, workplace harassment involves a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.
The circumstances matter, and reasonable management actions are not automatically workplace harassment.
Can my employer investigate a harassment complaint internally?
Yes. Ontario’s OHSA requires an employer to ensure that an appropriate investigation is conducted into incidents and complaints of workplace harassment.
The investigation must be objective and conducted by someone who is not directly involved in the incident or under the direct control of the alleged harasser.
Can I report harassment if my manager is the person harassing me?
Yes. The employer’s workplace harassment program must provide a way for workers to report harassment to someone other than the employer or supervisor when that person is the alleged harasser.
What if HR does not take my complaint seriously?
Employees should document their complaint and the employer’s response.
If an employer fails to conduct an appropriate investigation, an employee may be able to complain to the Ministry of Labour, Immigration, Training and Skills Development about the employer’s compliance with its OHSA obligations.
Can workplace harassment result in termination?
Workplace harassment can result in workplace consequences, including disciplinary action, depending on the employer’s investigation and findings.
The appropriate response depends on the circumstances and the employer’s policies and legal obligations.
Can I be fired for reporting workplace harassment?
The OHSA contains protections concerning reprisals for exercising rights under the Act.
An employee who believes they have been punished or threatened because they exercised workplace health and safety rights should preserve relevant documentation and consider obtaining legal advice.
Can workplace harassment cause constructive dismissal?
Potentially. Serious workplace harassment can contribute to circumstances in which an employee may have a constructive dismissal claim.
However, not every harassment situation constitutes constructive dismissal. Employees should obtain legal advice before resigning.
Do I need a lawyer to make a workplace harassment complaint?
You do not necessarily need a lawyer to make a workplace harassment complaint through your employer’s internal process.
However, legal advice can be useful when the harassment is serious, the employer has failed to respond appropriately, there are concerns about retaliation, or the situation may involve constructive dismissal, discrimination or another legal claim.
Get Advice About Workplace Harassment
Workplace harassment can create difficult situations for employees, particularly when the alleged harasser is a supervisor, manager or other person with authority over the employee. Understanding the employer’s obligations and documenting what has happened can help an employee make informed decisions about how to respond.
EmploymentLawyerToronto.ca provides employment law information and legal services for employees dealing with workplace issues in Ontario. If you are experiencing workplace harassment or believe your employer has failed to respond appropriately to a harassment complaint, consider speaking with an employment lawyer about your circumstances.
This page provides general information about Ontario employment law and is not legal advice. Employment law can depend on the specific facts of each situation.