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This webinar is brought to you by CLEONet www.cleonet.ca. CLEONet is a web site of legal information for community workers and advocates who work with low-income and disadvantaged communities in Ontario. . About our presenter….

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  1. This webinar is brought to you by CLEONet www.cleonet.ca CLEONet is a web site of legal information for community workers and advocates who work with low-income and disadvantaged communities in Ontario.

  2. About our presenter… Long-time educator, activist and lawyer, Zahra Dhanani is the Legal Director for the Metropolitan Action Committee on Violence Against Women and Children (METRAC), an agency that ensures access to justice for women, youth and children facing the threat of violence.

  3. METRAC’s Workplace Justice Series Bill 168: Ontario's New Legislation on Harassment and Violence in the Workplace Presented by Zahra Dhanani Legal Director, Justice Program

  4. METRAC’S Workplace Justice Series Exotic Dancers Experiencing Workplace Sexual Violence and Harassment METRAC’S Workplace Justice Series METRAC’S Workplace Justice Series Women Migrant Farm Workers Experiencing Workplace Sexual Violence and Harassment Workplace Sexual Violence & Harassment METRAC’S Workplace Justice Series Domestic Workers & Live-in Caregivers Experiencing Workplace Sexual Violence and Harassment METRAC’S Workplace Justice Series Women Health Care Workers Experiencing Workplace and Harassment METRAC’S Workplace Justice Series Women Temporary Help Agency Employees Experiencing Workplace Sexual Violence and Harassment "Safer for Women, Safer for Everyone"

  5. Just Legal Information…Sorry! • I CAN try and answer general legal information questions. • I CANNOT give advice on individual cases. "Safer for Women, Safer for Everyone"

  6. Context: Violence at Work • 90% of women working outside of the home will experience sexual harassment at some point in their work. • 70% of individuals suffering from DV are victimized at work (harassing phone calls, showing up at work) • Serious Issue “There is a growing world wide concern that violence is one of the most serious Occupational Hazards of the 21st century.” • Action taken only when there is a physical incident. • Something that builds and earlier signs exist. • Not an individual issue, rooted in systems. • This is a Gendered Issue: Lori Dupont/Theresa Vince "Safer for Women, Safer for Everyone"

  7. Legislative Framework: Workplace Issues • Ontario Human Rights Code • Occupational Health and Safety Act • Employment Standards Act • Workers Compensation Act • Workplace Safety and Insurance Act • Canada Labour Act • CCC, IRPA, etc. "Safer for Women, Safer for Everyone"

  8. Canada’s Labour Act, Canadian /Ontario Human Rights Commission….Harassment: • Preparing appropriate policies; • Monitoring their effectiveness; • Updating them as required; • Ensuring all employees are aware of the policies; and • Providing anti-harassment training *Canada Labour Code: Has specific language on sexual harassment: employer obligation to make sure employees know how to bring the harrassment to their attention "Safer for Women, Safer for Everyone"

  9. Workplace Sexual Violence and Harassment • Sexual Harassment does not have to be sexual. It also includes harassment that occurs because you are a woman. Making stereotypical comments about a person’s gender can be a form of sexual harassment. • Often a pattern of behavior over a period of time. • Can include: Degrading words, pictures, objects or gestures, physical contact and sexual demands. • Has largely been dealt with under Human Rights Codes and not Occupational Health and Safety Act. • However, high profile deaths in workplaces have lead to demands for legislation with more force on the issue. "Safer for Women, Safer for Everyone"

  10. Bill 168: 14 Year Chronology of Legal ChangeCompilation by Michelle Schryer: Chatham-Kent Sexual Assault Support Centre • June 2, 1996: Theresa Vince murdered at work by her Supervisor who then killed himself (SEARS knew about the Sexual Harrassment for over 1 ½ yrs) • November, 1997: Inquest into the Murder of Theresa Vince • 24 recommendations: (1) Occupational Health and Safety Act needs to be utilized. "Safer for Women, Safer for Everyone"

  11. Cont’d… • Spring 1998: Should Sexual Harrasment be included in the OHSA? • June, 2001: Bill 78 (died) • May, 2003: Bill 55 (died) • October, 2004: Bill 126 (died) • November, 2005: LORI DUPONT murdered • November, 2005: Bill 35 • December, 2005: Bill 45 "Safer for Women, Safer for Everyone"

  12. Cont’d….. • December, 2007: Dupont Inquest lead to 26 reccommendations. • December, 2007: Bill 29 (died) • December, 2009: Bill 168 • June 15, 2010: Comes into effect "Safer for Women, Safer for Everyone"

  13. Bill 168: Definitions • Subsection 1(1) of the OHSA is amended by adding: • Workplace Harassment is defined as: 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. • Workplace Violence – means: (a)The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker (b)An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker (c)A statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker "Safer for Women, Safer for Everyone"

  14. Bill 168: Important Notes • Employers are required to take proactive measures in regards to actions that meet the above criteria. • The definition of workplace harassment is not limited to the prohibited grounds within the Human Rights Code.  • Definition of workplace violence may lead to claims of psychological harm. "Safer for Women, Safer for Everyone"

  15. Bill 168: At a Glance The proposed legislation will require employers to develop: • Violence and harassment policies and programs • Employee reporting procedure (incidents, threats and complaints) • Incident investigation procedure • Emergency response procedure (violence only) • Process to deal with complaints, incidents and threats • Employers are required to complete a risk assessment of violence hazards that may arise from the nature of the workplace, the type of work or the conditions of work before developing a program. • The ministry’s tag line for this Bill on its communications material is: “Violence and harassment have no place in the workplace.” "Safer for Women, Safer for Everyone"

  16. Policies: s. 32.0.1 • Prepare written policies dealing with workplace violence and harassment.  In light of the new definitions, existing policies will need to be modified.  • Review the policies as often as possible, but AT LEAST annually. • Posted Conspicuously! (This does not apply if the number of employees is 5 or fewer) "Safer for Women, Safer for Everyone"

  17. WORKPLACE VIOLENCE PREVENTION PROGRAM: s. 32.0.2 and s. 32.0.6 Employers are required to develop a program that supports their policies to address instances of workplace violence.  The program must include the following:  •  Measures for immediate assistance where violence occurs •  Reporting procedures •  Investigative procedures •  Remedies "Safer for Women, Safer for Everyone"

  18. RISK ASSESSMENT AND REASSESSMENTSs.32.0.3 Employers SHALL conduct assessments regarding the risk of violence at work.    Employers SHALL advise the health and safety/ representative and employees of the results of these assessments and reassessments "Safer for Women, Safer for Everyone"

  19. DOMESTIC VIOLENCEs. 32.0.4 • If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker. • S.32.0.5 Sets out employer duties "Safer for Women, Safer for Everyone"

  20. Enforcement under OHSA • The law is enforced through the Ministry of Labour • An order is made by an Inspector instructing the employer to make any necessary changes to the workplace in light of safety considerations. • The Inspector is granted broad powers to perform inspections, including the power to obtain a warrant without notice to enter the premises, and to order an inspection. • Any person subject to an order from the Inspector may appeal through the Ontario Labour Relations Board (the Board). "Safer for Women, Safer for Everyone"

  21. PERSONS WITH A HISTORY OF VIOLENT BEHAVIOURs. 32.0.5 (3) • Employers are now obliged to provide information to employees pertaining to the violent histories of their co-workers where there may be a risk of violence "Safer for Women, Safer for Everyone"

  22. Safe Place: s. 43 (5) • Until an investigation is complete, the employee shall remain in a “safe place” as near as reasonably possible to his or her work station. • Be available to the employer or supervisor for the purposes of the investigation. "Safer for Women, Safer for Everyone"

  23. REFUSAL TO WORK • Where an employee has reason to believe that there is a potential for violence in the workplace, he or she may refuse to work. • Workplace Violence was not included in the right to refuse work pre-Bill 168 • Violent Behavior or threat of violent behavior was not considered as “inherent to the workers work”. (OHSA test) "Safer for Women, Safer for Everyone"

  24. OHSA: Treatment of Sexual Harassment and Workplace Violence pre-Bill 168 • The Board has generally been concerned with the issue of duplication, as it feels that sexual harassment is properly and more effectively addressed by the Human Rights Commission and Code. "Safer for Women, Safer for Everyone"

  25. OHSA: Treatment of Sexual Harassment and Workplace Violence • Where the Board agrees that sexual harassment could form a successful complaint under the OHSA it also seems to set strict limits. "Safer for Women, Safer for Everyone"

  26. 2 Instructive Cases under OHSA • Lyndhurst Hospital [1996] O.L.R.B. Rep. May/June 456 (QL) • Meridian Magnesium Products Limited [1996] O.L.R.B. Rep. November/December 964 (QL). "Safer for Women, Safer for Everyone"

  27. Findings • In both cases, counsel for the employer urged the Board to refuse jurisdiction over the cases on the ground that a claim for sexual harassment was not part of the reach of the OHSA and because the Human Rights Code was specifically set out to deal with matters such as sexual harassment "Safer for Women, Safer for Everyone"

  28. …. • In Lyndhurst Hospitalcounsel for the employer argued that while sexual harassment was not acceptable in the workplace, it was not covered under the OHSA and a legislative amendment would be required to properly include it within the scope of the law. Counsel argued that the OHSA was intended to address threats to physical safety and that if the Board accepted the proposition that sexual harassment was covered by the OHSAthen there would be an obligation placed on employers to warn employees about the potential hazard presented by harassers; this suggestion was characterized by the employer as an absurd result. "Safer for Women, Safer for Everyone"

  29. Arguments of Counsel • Counsel for the Employers put forward: • Open up a Floodgate of Sexual Harassment claims • Severe Duplication Issue • Sexual Harassment is discrimination but it is not violence. It is not a safety issue. "Safer for Women, Safer for Everyone"

  30. Findings • Both cases were dismissed: • Duplication • Sexual Harassment not covered under the OHSA as it is not a “safety” issue. "Safer for Women, Safer for Everyone"

  31. Training Programs: OHSA • Border Steel Ltd. v. Workers of Border Steel Ltd. • Skyjack Inc. v. Ontario • Business Case trumps Safety • Inspector had concerns regarding worker safety, but was unable to address them with the tools available "Safer for Women, Safer for Everyone"

  32. METRAC Findings Marginalized Workers "Safer for Women, Safer for Everyone"

  33. Key Workplace related issues: • Workplace harassment/violence is often accepted as part of the job in some sectors such as health care and exotic dancing and therefore incidents of violence are not reported. • Lack of permanent legal immigration status forces women to work under precarious conditions and from reporting incidents of sexual violence and harassment. • The organization and structure of temporary employment contribute to women’s inequality and uneven power relations. "Safer for Women, Safer for Everyone"

  34. Cont’d ……Barriers to Justice Disabled women, Foreign, immigrant and refugee women workers more vulnerable due to: ● fear of job loss ● lack of access to information and ● linguistically/culturally accessible resources Discrimination in the workplace environment clearly increases chances of other forms of Workplace violence and harassment. Women workers in precarious work situations often face other forms of discrimination, including: ● unequal pay, ● health and environmental hazards, ● poor living conditions, ● farm/factory accidents and, ● chemical poisoning. "Safer for Women, Safer for Everyone"

  35. Potential Responses Workplace harassment and violence: 1.Keep a journal of what happens and tell your employer/supervisor 2. Make a complaint to the Ontario Human Rights Commission 3. Contact the Ministry of Labor Inspectors 4. File a complaint under the Employment Standards Act 5. Apply for compensation under the Compensation for Victims of Crime Act 6. File a civil suit at a Small Claims Court "Safer for Women, Safer for Everyone"

  36. Action Plan for dealing with sexual/physical assault: 1. Go to a safe place 2. Talk to a friend or call a sexual assault/rape crisis centre 3. Decide whether to report the assault or not 4. If a report is made to police, they will need evidence "Safer for Women, Safer for Everyone"

  37. Identified responses might not be accessible for the most marginalized women because: •  Human Rights Commission may not review a case if a worker does not have a legal • status in Canada. • Foreign workers who report sexual violence or harassment are at risk of being fired which • could affect their immigration status •  If the police find out a worker does not have legal status, they might still report the worker to • immigration authorities. • Toronto – “Don’t Ask” Policy is not a “Don’t Tell” Policy •  Workers without legal status should consult with a lawyer/legal clinic before: • ● filing a civil suit • ● applying for compensation "Safer for Women, Safer for Everyone"

  38. If you would like to order METRAC’s Workplace Justice Series or other METRAC materials, please contact METRACat Tel: (416) 392-3135E-mail: info@metrac.orgFor online resources, visit www.metrac.orgwww.owjn.org

  39. And finally… • Please take a moment to fill in our feedback survey which will appear on your screen when you leave the webinar. • The webinar should be available online in the next few days on the CLEONet web site at: www.cleonet.ca/legal_education_webinar_archive. You can post any follow-up questions or comments to CLEONet so that we can continue the learning online. • For a list of upcoming legal information webinars or to get involved in developing a webinar with us visit: www.cleonet.ca/legal_education_webinars

  40. This webinar was brought to you by CLEONet For more information on legal topics such as Employment and Work and Abuse and Family Violence visit CLEONet at www.cleonet.ca For more legal information webinars visit: http://www.cleonet.ca/legal_education_webinars

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