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?
In Newfoundland and Labrador, there are two laws that offer you protection from sexual harassment at work.
The Newfoundland and Labrador Human Rights Act says that sexual harassment in the workplace is against the law. It protects people from discrimination and harassment based on specific grounds, including sex, sexual orientation, gender identity, and gender expression. Under the act, sexual harassment is prohibited in the workplace.
The Occupational Health and Safety Act (OHSA) and the Occupational Health and Safety Regulations protect workers in Newfoundland and Labrador from all sorts of hazards at work, including violence and harassment. Under the regulations your employer is required to have a written harassment prevention plan saying how they prevent, deal with, and investigate workplace harassment, which includes sexual harassment.
The Human Rights Act and the OHSA and the regulations all work together to protect you from sexual harassment.
Your employer has responsibilities under all of 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:
- anyone who gets paid for providing services (including independent contractors)
- people who aren’t paid, but are part of a work placement program (like a co-op job, job shadowing, a research project, fieldwork, or an internship)
Who in Newfoundland and Labrador is not covered by the OHSA?
These are the exceptions of people working in Newfoundland and Labrador 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.
- The OHSA doesn’t apply to volunteers. (But that doesn’t mean volunteers can’t report sexual harassment; they absolutely can. It just means the employer may not be obligated to carry out a full investigation.)
If you aren’t sure if the OHSA and its regulations apply to you, you can call the Occupational Health and Safety Division at 1-800-563-5471.
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 as long as it was work-related.
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.
To figure out if the harassment qualifies as work-related even though it’s happening outside your workplace, here are some questions you can ask yourself:
- Were you working or doing work-related tasks?
- Were you supposed to be there as part of your job?
- Did you do work or did anyone talk about work there?
- If it happened during an activity, like a work party, was the activity organized by your employer?
If the harassment happened online, ask yourself:
- Is the harasser someone you work with?
- Did it seem like your co-workers may be aware of the harassment?
- Were there messages or posts about you shared publicly either on workplace platforms or outside of work?
What does the OHSA require from an employer?
The regulations require employers to make it clear that workplace harassment, which includes sexual harassment, will not be tolerated, and to have a plan for responding to reports. The regulations also require the employer to have a written harassment prevention plan. Think of it as a guide for how sexual harassment will be dealt with and what to expect if you report sexual harassment at work.
The harassment prevention plan should include:
- the process for how to report harassment
- the process for reporting to someone other than a supervisor or boss, if the supervisor or boss is the harasser
- how reports will be investigated
- how information collected during an investigation will be kept confidential, and how any breaches of confidentiality will be dealt with
- how you will be informed of the results of an investigation
The plan should be accessible to all workers and reviewed at least annually by the employer.
If there is no workplace program/policy at your workplace, or if your employer isn’t following it, you can report that to the Occupational Health and Safety Division at 1-800-563-5471.
See a sample harassment prevention plan (page 18).
Who’s who when you report
A designated person is someone your employer names in their policy as the person harassment should be reported to. It’s not necessarily their job to conduct the investigation. They are supposed to be a person you can tell, and then they will make sure that your report gets to the people who can handle it. If there is no designated person (or you don’t want to report to them), you should be able to report to any supervisor or manager, or to HR. Just try to be clear that you are making a formal report of sexual harassment, and that you expect them to make sure it gets to the right people.
Your workplace may have a human resources department, or a person responsible for HR. They handle every aspect of staffing—hiring, firing, benefits, training, contracts, etc. HR staff may be helpful, providing information and answering your questions. But remember that HR staff work for the employer. They are not your representative or advocate.
Once a formal report is made, your employer should designate an investigator. They are supposed to review your complaint and interview you, the harasser, and any witnesses. The investigator will decide whether what happened to you is workplace harassment. The investigator is selected and hired by the employer and makes a report to the employer with recommendations.
Occupational Health and Safety Committee, worker health and safety representative or workplace health and safety designate
Your workplace will have an Occupational Health and Safety Committee, a worker health and safety representative or a workplace health and safety designate. They identify safety risks and offer recommendations to your employer on how to keep the workplace safe. While their specific duties can vary, their role will always include monitoring the health, safety and welfare of employees.
If you belong to a union, there will be a collective agreement that outlines the contract between the union and employer. You can think of your union as an advocate for safe and healthy workplaces. If your employer is not following the collective agreement, your union can make a complaint, called a grievance.
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 policy. 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 if you feel safe to do so.
- 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 who 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. Your employer’s policy may also contain a complaint form where you can provide the details.
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 plan.
- They are supposed to understand the OHSA and its regulations.
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 workplace harassment under the regulations’ definition. 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 shouldn’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.
There may be someone there to assist the investigator by taking notes. If your workplace policy allows it, you may be able to have a support person or union rep with you.
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 where your workplace harassment policy permits. If you are a member of a union, your union representative can attend with you if you would like them to. 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.
- 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. See Document everything.
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:
- Call the Occupational Health and Safety Division (1-800-563-5471). If it agrees that your situation is covered by the OHSA, it may order your employer to investigate.
- Contact your union.
What if the investigator seems biased?
The investigator is supposed to be fair and unbiased. But they aren’t always. If you’re concerned that the investigator is biased, you can contact the Occupational Health and Safety Division (1-800-563-5471) to speak with an OHS officer. If the OHS officer agrees with you, they have the power to order a new investigation by an impartial third party that your employer must pay for.
What if the investigation is taking a really long time, or I am not getting any updates?
If that happens, you can contact the Occupational Health and Safety Division, and it can order your employer to conduct a new or better investigation. Or you can contact your union.
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 and provide support to you. Or, you can report it to the Occupational Health and Safety Division.
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. If the employer asks, it may provide recommendations about what they can do to keep the workplace safe from sexual harassment in the future.
If the harasser is someone who works for the employer, they may be fired or transferred or suspended or reprimanded. Alterations to the workplace to make it safer, like changes to shifts or scheduling, policy changes or education, could also happen.
Your employer must meet with you and the harasser separately to inform you of the results of the investigation. They must tell you if any corrective actions will be taken.
Your employer isn’t required to follow any of the investigator’s recommendations, even if they requested them. They also 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 choose to resolve issues with you in other ways. They may agree to make changes in your working situation—only if you agree; otherwise, that could be a reprisal. They may ask you to participate in alternative dispute resolution or negotiate with you to give you some compensation in exchange for your not taking legal action. Usually, if you make this kind of agreement, the employer also makes you agree to not talk publicly by signing a non-disclosure agreement about any of the details of the incident and the settlement.
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. In that case, you might consider talking with a lawyer who can help you figure out what to do next. See How to find and work with a lawyer. Here are some things you might consider:
- You can file a complaint with the Occupational Health and Safety Division. It may send its own officer to review the situation and can order your employer to take steps to comply with the OHSA, or it can order them to pay a fine. The Occupational Health and Safety Division will not give you any type of financial award, or take over the sexual harassment investigation. Instead, its job is to make sure that your employer is complying with the OHSA and the regulations.
- The same report of sexual harassment can be included in a complaint to the Newfoundland and Labrador Human Rights Commission. It investigates and hears cases where there’s been a potential violation of the Human Rights Act. The commission can award damages. See How to decide whether to file a human rights complaint. Consider discussing your situation with a lawyer. You must file a human rights complaint within one year of the harassment.
- You may be able to bring a civil lawsuit against your employer, depending on your situation and the investigation findings. Consult with a lawyer who can provide you with appropriate advice based on your situation. You must start a civil suit within two years of the harassment. See How to decide whether to take legal action (and what to expect if you do).
- Your union, if you have one, might decide to bring a grievance against your employer for the way they failed to handle your report. It’s important that you speak with your union as soon as possible, as there may be a deadline to file a grievance, depending on your union’s collective agreement. 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). This means that you consider you have been let go from work, and you seek damages for pay in place of receiving reasonable notice. If you plan to do this, consult with a lawyer, because claiming constructive dismissal is complicated. You have six years to do this.