If you’ve decided to report sexual harassment to your employer, this guide is for you. Here’s everything you need to know.
We’ll start with some background.
What is the OHSA, who does it protect, and what does it require from employers?
OHSA is usually pronounced oh-shah, even though it’s not spelled that way. It rhymes with Scotia.
In New Brunswick, there are two laws that offer you protection from sexual harassment at work.
The Occupational Health and Safety Act (OHSA) is all about safety in workplaces. It’s the law in New Brunswick that protects workers from all sorts of hazards at work, including violence and harassment. Under the OHSA’s General Regulation your employer is required to have a code of practice saying how they deal with and investigate harassment and workplace violence.
The New Brunswick Human Rights Act says that sexual harassment is against the law in the context of employment, housing, accommodation and services, and professional, business and trade associations. Under the act, your employer is required to prevent and respond to sexual harassment in the workplace.
The OHSA and the Human Rights Act work together to protect you from sexual harassment.
Your employer has responsibilities under both these laws.
Does the OHSA apply in your situation?
The OHSA relates to the actions and behaviour of people in your workplace, including your boss, co-workers, contractors, customers, and clients.
The OHSA covers most workers. That includes:
- employees
- people at the place of employment (like contractors, customers, volunteers, etc.)
Who in New Brunswick is not covered by the OHSA?
These are the exceptions of people working in New Brunswick who aren’t covered by the OHSA:
- The OHSA doesn’t apply to federally regulated workplaces such as post offices, banks, radio and TV operations, and airlines and airports. People in those industries are protected by the Canada Labour Code.
If you aren’t sure if the OHSA applies to you, you can ask WorkSafeNB.
Does the OHSA cover sexual harassment related to your work that’s happening outside the workplace?
Yes! Employers are responsible for protecting you against workplace sexual harassment even if it happens outside of the workplace.
If you’re sexually harassed at a work event, while you’re working at home or online, while you’re travelling for your job, or even if a co-worker harasses you in a social setting outside of work hours, your employer is responsible for taking steps to ensure your safety.
What does the OHSA require from an employer?
The OHSA requires employers to make it clear that harassment will not be tolerated, and to have a plan for responding to reports. The OHSA requires the employer have a harassment code of practice. Think of it as a guide for how harassment or violence will be dealt with and what to expect if you report harassment at work.
The code of practice says how complaints can be made and how the employer will investigate them.
The code of practice is supposed to describe:
- who is responsible for carrying out the code of practice
- how your employer will investigate and document harassment
- how your employer will take corrective action
- how you will be informed of the results of an investigation
- the followup steps the employer will take.
If there is no code of practice at your workplace or if your employer isn’t following it, you can report that to WorkSafeNB (1-800-999-9775). Note: spellcheck is interfering with this link
See a sample code of practice.
Okay. Now you know the basics.
Now we’ll tell you how to actually report.
Getting ready to report
The first thing you should do is try to get a copy of your workplace harassment code of practice. It will tell you how you’re supposed to report and what’s supposed to happen once you do.
- It may tell you to try talking directly with the harasser first.
- It may name people or positions you’re supposed to report to.
- It may give a deadline for how quickly you need to report.
Don’t worry too much about following the exact procedures. As long as you go to a person in a position of authority and tell them you are formally reporting sexual harassment, that should be enough to get things started.
It’s pretty common for employers to handle reports badly. You might report to someone, and they might think you’re just venting or asking for advice. So it’s important to say as clearly as possible that you are making a formal report of sexual harassment. It’s also pretty common for people to not know what they’re supposed to do next. So if nothing seems to happen after you report, you might want to follow up to make sure someone is taking action.
Some people think that HR is supposed to be on their side. That’s not really true. A good HR person will want the workplace to be safe and will know they have a responsibility to act on your complaint. But their responsibility is really to your employer, not to you. They should help you, but they are not your friend or advocate.
You may feel like you are causing a problem for your employer by reporting. But that’s not really what’s happening. When you report sexual harassment, you are bringing a problem to your employer’s attention. You didn’t create it; you’re just reporting it.
It might help to think about it the same way you’d think about reporting a gas leak or a piece of broken equipment. It’s a safety issue.
How to report
Once you’ve picked whom you’re going to report to, make an appointment with them. Try not to just drop by; it’s better if you have their full attention. If you don’t know what to say when you make the appointment, you can just tell them you want to talk about a workplace problem.
You should report verbally and, ideally, face-to-face, not just in writing. Bring something you’ve written and leave it with them. This can be a good idea if you’re worried there are things you may forget to say, or if you think they may mishear or misunderstand you.
What happens after you report
After you report, your employer should assign someone to investigate.
- The investigator can be someone from within the workplace or outside it.
- They are supposed to be objective and neutral. Not on your side, or the harasser’s side.
- They are supposed to follow the employer’s workplace harassment code of practice.
Some investigations may only take a day, while others may take months.
If the investigation costs any money (like, for a translator if you need one), your employer is supposed to pay for it. You should not have to pay any costs related to the investigation.
The investigator’s job is to decide whether what happened to you qualifies as sexual harassment. To do that, they will talk with you, the person who harassed you, and anybody who witnessed it.
To do their work, the investigator needs to ask the harasser about what they did. That means the harasser will know you reported them.
The investigator should keep you informed about the timing and progress of their investigation, but they usually won’t tell you details. You won’t be allowed to be there when other people are interviewed, and you won’t be able to see notes or transcripts from the interviews.
How to prepare to be interviewed
The investigator should invite you to a meeting, where they will ask you to tell your story. They will ask for details (what happened, where, when, etc.), whether there were witnesses, and if you have any documents or other evidence. They may also ask how the harasser has behaved to you since then.
People at the meeting may behave formally and seriously, even if they know you from outside the investigation. You may feel like that means they are mad at you or don’t believe you. But that’s not necessarily the case. They may just be trying to be respectful.
It’s rare for an investigator to be challenging or aggressive. Normally they are just trying to gather information and make sure they understand what you’re saying. It’s normal for them to ask you a lot of questions and write down everything you say.
Here are steps you can take to prepare for the meeting:
- If there’s anything about the meeting that doesn’t work for you—for example, its location or timing—you can ask for an alternative. You can also ask to bring a support person with you. If you require accommodations at the meeting—for example, a translator—you should ask for them.
- If you haven’t already, you should write down all the important events in the order they happened. Try to include as much detail as possible, including dates, times, names of people who were present, what was said or done, and where it happened. Bring a copy of this document with you to the meeting. See Document everything.
- Collect copies or printouts of any documents related to the harassment. This might include printouts of emails, screenshots of text messages, your phone call log, or anything else you think is relevant.
How to handle yourself during the interview
- Remember that you haven’t done anything wrong, and you are not on trial.
- You can take your time when answering questions. If you’re not sure you understand a question, ask for it to be repeated or rephrased.
- It is always okay for you to ask for a short break.
- It is okay for you to take notes.
- It’s totally fine for you to ask about the investigator’s process and timeline.
- It’s totally fine for you to tell the investigator about any concerns you have.
- It’s a good idea to tell the investigator if you’re worried about confidentiality, especially if you’re afraid the harasser will get other people to gang up on you for reporting them.
Things that can go wrong and how to handle them
What if my employer ignores my report?
This is really common. Roughly 50% of sexual harassment reports get ignored. If that happens to you, you can:
- Contact your union, if you have one.
- Contact your workplace health and safety rep.
What if the investigation is taking a really long time, or I am not getting any updates?
If that happens, you can contact your union or workplace health and safety rep.
What if people at work are gossiping about me and the investigation?
This isn’t supposed to happen. Investigators are only allowed to share information about the investigation if it will help them do their work, protect other workers, or if the law says it must be shared. (For example, if criminal charges have been laid, the investigator might have to share information with the police.) The investigator is supposed to instruct anyone involved with the investigation to not talk about it.
But it’s actually really common for people to gossip about the investigation. And sometimes it can be really bad. Sometimes, other people decide to support the harasser, and start treating you badly.
If that happens, you should tell your employer. They are supposed to protect you against any harassment that might happen as a result of your report.
What if I get punished for reporting?
Getting punished for reporting is extremely common. About a third of people who report say that in the end they got punished. So, yeah, if you think it’s happening to you, it probably is. We’re really sorry.
What happens is people end up sympathizing with the harasser and blaming you for reporting them. They decide you’re a troublemaker, or a problem, or a drama queen. That makes them like you less, and so they start treating you badly. They might schedule you for fewer shifts, stop helping you with your work, or decide to not recommend you for a promotion or raise or other opportunity.
These are called reprisals, and they’re so common and so awful, we wrote an entire guide about them See Getting punished for complaining and how to protect yourself. Please read it. We want you to be able to protect yourself.
What happens once the investigation is over
The investigation report tells the employer whether the investigator thinks sexual harassment happened.
Your employer must inform you and the harasser about the results of the investigation. This can be verbally or in writing. They don’t have to ask your opinion about what they should do. If they end up punishing the harasser, they may or may not tell you about it.
Your employer may address the issue differently, such as changing your work situation with your consent, offering dispute resolution, or negotiating compensation. Settlement agreements often include non-disclosure clauses.
What to do if you’re not happy with the outcome
If your employer chooses to do nothing about the harassment, they aren’t meeting their duties under the OHSA and the Human Rights Act. Here are some things you might do. First, though, consider consulting a lawyer.
If you’re not unionized, the same complaint of sexual harassment can be included in an application to the New Brunswick Human Rights Commission. It hears cases where there’s been a violation of the Human Rights Act. The commission can award damages. See How to decide whether to file a human rights complaint.
- You may be able to bring a civil lawsuit against your employer. See How to decide whether to take legal action (and what to expect if you do). You must start a civil suit within two years of the harassment.
- Your union, if you have one, might decide to bring a grievance against your employer for the way they failed to handle your report. See Working with your union.
- If your work environment has gotten worse, it may seem poisoned, creating intolerable employment conditions. You may be able to claim constructive dismissal. See How to decide whether to take legal action (and what to expect if you do).
