The Ontario government recently announced its introduction of Bill 190 (also known as the Working for Workers Five Act, 2024). The bill proposes changes to various pieces of employment-related legislation. One of these changes is the expansion of the definitions of workplace harassment and workplace sexual harassment under the Occupational Health and Safety Act ("OHSA") to include certain virtual activities. Specifically, clause (a) of the definitions of "workplace harassment" and "workplace sexual harassment" in subsection 1(1) of the OHSA are to be amended by adding "including virtually through the use of information and communications technology" after "workplace." These proposed amendments are essentially playing catch-up with the modern-day workplace, and the reality that workplace harassment can occur across any number of digital or virtual platforms.
As workplace investigators, we have found that workplace digital communication platforms can be a breeding ground for sexual harassment specifically. We have a few theories as to why: perpetrators may feel less inhibited over these types of platforms than during in-person interactions, they may feel that there is less employer oversight of their behaviour, or they may feel that their conduct is not "as bad" as if it were perpetrated in person. Case in point: a recent Australian study reported that 1 in 7 Australian adults surveyed admitted to engaging in workplace technology-facilitated sexual harassment,1 and those surveyed reported rarely being held to account for this behaviour.2
Since the pandemic we have been increasingly conducting workplace investigations into "virtual" sexual harassment – whether it be sexual misconduct over text messages, WhatsApp chats, Snapchat videos, or videoconference chat functions (to name a few). Conducting these types of investigations can be challenging. There is the potential for there to be very large amounts of documentation, requiring a grasp of the technologies at issue, an understanding of any privacy implications, as well as the time and resources to review the documentation. The documentation may also be graphic or disturbing in nature. In other cases, the documentation may either not exist or cannot be recovered, leaving the investigator to assess the credibility of what the parties say happened. The legal analysis as to whether the perpetrator knew or ought to have known that their conduct was unwelcome can also pose unique challenges and bring up novel issues around acquiescence vs. consent. Is the sending of a GIF, or the "liking" of a message, an indication that the conduct was welcome? How much can be read into an emoji or a reel? Additionally, investigators need to be on alert for AI, and the potential for fake message or image generators. This may require a greater level of scrutiny of the documentary evidence collected and it increases the importance of having a step in the investigation process that allows parties an opportunity to review and respond to documentary evidence.
In preparation for Bill 190, employers should consider reviewing their workplace policies to ensure that their definitions of workplace sexual harassment (and workplace harassment) include technology-facilitated behaviour. Conduct that was previously dismissed as falling outside of the boundaries of the "workplace" and the jurisdiction of an employer may now be captured3 and may trigger an investigation. As set out above, these investigations can be challenging and potentially time-consuming. Employers should consider whether they have the expertise and/or resources to conduct these types of investigations internally, or whether it would be more appropriate to retain someone external. Strengthening employer response to these forms of sexual harassment sends a message to employees that this conduct is serious and will be treated as such.
Footnotes
1 Defined as involving "unwelcome and/or threatening sexual conduct using a mobile, online and other digital technologies in a workplace context."
2 Flynn, A., Powell, A., & Wheildon, L. Workplace technology-facilitated sexual harassment:Perpetration, responses and prevention (Research Report, 03/2024) online: ANROWS. https://www.anrows.org.au/publication/workplace-technology-facilitated-sexual-harassment-perpetration-responses-and-prevention/
3 See for example the recent Divisional Court decision Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900 (CanLII), where WhatsApp messages exchanged between a group of employees about other employees on their personal cellphones outside of work hours (and which were subsequently shared beyond the group chat) were deemed to be a workplace issue.
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