Employer Responsibilities

Do you own or manage a business in New Brunswick? Do you have questions about your responsibilities regarding addressing sexual harassment in the workplace? Or are you an employee and want to know what your employer is responsible for?

Safer Places NB is offering a free workshop on Addressing Workplace Sexual Harassment November 14, 1pm- 4pm, to help employers, managers and supervisors understand their legal obligations. You will learn how to create and implement a policy for your workplace, how to handle a complaint, and get free fillable templates.

FAQs

What are an employer’s legal obligations regarding sexual harassment in the workplace?

Employers have a legal obligation to both prevent and address workplace harassment. This legal obligation comes from the common law, occupational health and safety legislation, and human rights legislation. All employers are legally required to provide a safe and harassment-free work environment, including harassment from fellow workers, customers, or members of the public.

What does the Human Rights Act say?

Section 10(1) of the New Brunswick Human Rights Act defines sexual harassment as “vexatious comment or conduct of a sexual nature that is known or ought reasonably to be known to be unwelcome.” This conduct can range from sexual jokes and inappropriate comments to unwanted physical contact to sexual assault. Knowing where a behaviour falls on the spectrum of sexual misconduct at work depends on the situation, history of the relationship, tone of delivery, and nonverbal actions.

What are the consequences of NOT having a policy in place?

Employers can face serious financial consequences for failing to have a workplace harassment policy and training in place for employees. For example, the Occupational Health and Safety Act requires employers to have a policy. If there is no policy in place, WorkSafeNB can investigate and impose fines.

What consequences can an employee face?

Employees also face serious consequences for engaging in Workplace Sexual Harassment (WSH), including disciplinary action and financial and criminal liability.

Perpetrators of WSH can be:

disciplined, up to and including termination, by their employer
held personally (financially) liable under health and safety legislation, human rights legislation
possibly charged with a criminal offence under the Criminal Code of Canada

How can I ensure my employees will feel confident their case of sexual harassment will be dealt with effectively?

Effective strategies to increase employee confidence in Workplace Sexual Harassment processes require the following:

Managers must respond appropriately to complaints

Managers must respond appropriately to employees who come forward with complaints of WSH. Training for managers should be clear on how they are to respond to a complaint of WSH. Attempts to downplay or ignore the complaint is obviously destructive to the process.

Multiple reporting channels

Having more than one person to report WSH has been shown to increase reporting. Employees may be fearful of approaching their manager or supervisor about a complaint so having multiple reporting channels can ease this concern and encourage more employees to report what they are experiencing.

Timeliness of investigations

The timeliness of investigations is vital to all parties and is seen as an important indicator that the process is fair to the parties.

Application of appropriate sanctions

If the complaint of WSH is founded, it is important that any sanction applied is appropriate for the individual circumstances. Weak sanctions, such as the proverbial “slap on the wrist” deflect organizational responsibility for WSH and indicate a climate of tolerance for sexual harassment.

Use of mediation

The existence of an option for mediation or other informal procedures has been shown to increase employee confidence in the organization’s workplace harassment processes. This is especially the case with people who are less likely to report occurrences of WSH and who are less likely to agree to a formal process for investigation.

If harassment happens online, is that considered a workplace?

A workplace can be described as any place an employee is engaging in work-related tasks and activities. This could be the office, a business trip, a staff party, etc. With respect to where WSH takes place, while many forms of WSH take place person-to-person, it may also happen through online technology.

I plan to prepare a harassment policy for my workplace, where do I start?

SaferPlacesNB has created a sample policy which any employer can adapt to their own workplace. Once developed, this policy must be posted prominently in the workplace.

You must also provide workers with a reporting form to ensure workers are able to easily report incidents:

Do I need to train my staff about the policy?

Training for employees and leadership is crucial to stopping workplace sexual harassment. The introduction of a policy, even a well written one, without adequate training sets the organization up for failure. Employees and leadership need to clearly understand the organization’s expectations and an individual’s obligations with respect to workplace sexual harassment. Training bridges the gap between the policy and the change in the organization’s attitudes towards workplace sexual harassment.

What are microaggressions?

Research on sexual harassment in the workplace shows that in addition to “old-fashioned” blatant sexually explicit behaviours, some individuals such as members of the LBGTQ2S+ community may also experience more subtle forms of harassment referred to as “microaggressions”.

Sexual harassment is a persistent and pervasive workplace problem. These strategies can help.

Primary prevention strategies

In anticipation of an incident of Workplace Sexual Harassment, strategies include:

develop an organizational climate that supports the eradication of WSH (including the modeling of appropriate behaviours by leadership),
create policies designed to address WSH, and
adequately train leaders and employees on WSH.

Secondary intervention strategies

These strategies are designed to respond immediately to a report of WSH, aim to prevent further perpetration of WSH, and address short-term consequences, including the victimization of those at risk.

Tertiary intervention strategies

These strategies involve longer-term responses after the problem has occurred to deal with lasting consequences, minimize its impact, restore health and safety, and prevent further perpetuation of WSH and victimization.

Resource Page

Do you have more questions? Email us at info@saferplacesnb.ca

My employee has legal questions about how to proceed, what can I suggest?

The SaferPlaces NB Lawyer Referral Program provides 2 hours of FREE legal advice about workplace sexual harassment issues for employees. There are 2 ways to register:

Call 1-888-236-2444 to leave a voicemail message, and a staff member will return the call within 3 business days.
Fill out a form online.