Policy Requirements for the Prevention of Bullying & Sexual Harassment in the Workplace

NOTE: This content was originally published by Natalie Cuthill of McMillan LLP and has been summarized.

All employers are responsible for providing a workplace where employees are free from harassment. Having a comprehensive anti-harassment policy, and providing training to managers and the rest of your employees can help keep harassment out of the workplace. In fact, The Canada Labour Code (the "Code") requires that every federally regulated employer have policies on the prevention of workplace sexual harassment.

Sexual Harassment:

The Code defines sexual harassment as any conduct, comment, gesture, contact of a sexual nature likely to cause offence or humiliation or that might, on reasonable grounds, be perceived as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.

The Code requires federally regulated employers to make reasonable effort to ensure that no employee is subject to sexual harassment. Furthermore, every employer must issue a policy statement concerning sexual harassment after consulting with its employees or the employees' representatives.
 
The policy must include a definition of sexual harassment substantially the same as the one in the Code, and the following statements:

• Every employee is entitled to employment free from sexual harassment;
• The employer will make every reasonable effort to ensure that no employee is subjected to sexual harassment;
• The employer will take such disciplinary measures as the employer deems appropriate against any person under the employer's director who subjects an employee to sexual harassment;
• Explaining how sexual harassment complaints may be brought to the attention of the employer;
• The employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measures in relation to the complaint; and
• Informing employees of their right to make a complaint under the Canadian Human Rights Act.

Furthermore, employers are obligated make each person under the employer's direction aware of the policy statement by posting and keeping copies of the policy statement where it is likely to be seen by employees.

Bullying & Harassment - A focus on British Columbia

Bullying and harassment is defined as including any inappropriate conduct or comment by a person towards a worker that the person knew, or reasonably ought to have known would cause that worker to be humiliated or intimidated, but excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment. Person means anyone workers come into contact with at the workplace, including a co-worker, a supervisor, the employer, a client or the public.

WorkSafeBC considers the following to be reasonable steps for employers to take in order to meet their legal obligations to prevent and address workplace bullying and harassment:

1. (1) Developing a policy statement with respect to workplace bullying and harassment not being acceptable or tolerated;
2. (2) Taking steps to prevent where possible, or otherwise minimize, workplace bullying and harassment;
3. (3) Developing and implementing procedures for workers to report incidents or complaints of workplace bullying and harassment, including procedures for workers to report on the employer, supervisors, or persons acting on behalf of the employer;
4. (4) Developing and implementing procedures for how the employer will deal with complaints, such as investigations, follow-up and record keeping;
5. Informing workers of the employer's policy statement and the employer's steps to prevent or minimize workplace bullying and harassment;
6. Training supervisors and workers on how to recognize the potential for bullying and harassment, respond to it, the procedures for reporting, and how the employer will deal with incidents and complaints;
7. Annually reviewing (1), (2), (3), and (4); and
8. Adhering to its own policies and procedures, i.e. not engaging in bullying and harassment of workers and supervisors.

Every supervisor also has a duty to take all reasonably steps to ensure the health and safety of workers under their supervision. Accordingly, supervisors have obligations not to engage in the bullying and harassment of workers, other supervisors, the employer or persons acting on the employer's behalf, and to apply and comply with the employer's policies and procedures on bullying and harassment.

For any additional questions on the topic or legal inquiries - please contact Katherine Reilly from McMillan LLP.

About the Author:

Natalie Cuthill

Natalie Cuthill is an associate in the Advocacy and Employment Group in the firm's Vancouver office. Natalie's practice focuses on civil litigation and administrative law, including provincial and federal labour and employment law, human rights, and commercial and contract disputes. Natalie has worked on British Columbia and Canada Industrial Relations Board arbitration matters and matters in Provincial and Supreme Court.