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 law, who does it protect, and what does it require from employers?
On Prince Edward Island, there are laws that offer you protection from sexual harassment at work.
The Employment Standards Act is all about health and safety in the workplace. It’s the law in P.E.I. that protects workers from all sorts of hazards at work. The ESA sets out requirements for employers regarding workplace sexual harassment and violence.
The Occupational Health and Safety Act is the law in P.E.I. that protects workers from all sorts of hazards at work. Violence is covered under general regulations. Workplace harassment, which includes sexual harassment, is covered under specific OHSA Workplace Harassment Regulations.
The Human Rights Act says that sexual harassment 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, your employer is required to prevent and respond to sexual harassment in the workplace.
The ESA, the OHSA, and the Human Rights Act work together to protect you from workplace sexual harassment. Your employer has responsibilities under each of these laws.
Does the OHSA apply in your situation?
The OHSA applies 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
- self-employed people
Who in P.E.I. is not covered by the OHSA?
These are the exceptions of people working in P.E.I. 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 contact the Workers Compensation Board.
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. The harassment must have occurred at a work-related site or event. This means any place where you might be working, or doing something related to your work.
If you’re sexually harassed at a work event, while you’re working at home or online, or while you’re travelling for your job, 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 or who has a connection to your work, like a customer?
- 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 OHSA Workplace Harassment Regulations require an employer who knows or ought reasonably to know that harassment in the workplace is occurring to ensure that the source of the harassment is identified and the harassment stopped, and that reasonable steps are taken to remedy the effects of the harassment, and to prevent or minimize future incidents of harassment.
If someone makes a complaint of harassment, the OHSA Workplace Harassment Regulations require employers to conduct an investigation and to take steps to make the workplace safe.
The OHSA regulations also require the employer to have a policy to prevent and investigate harassment in the workplace. Think of it as a guide for how sexual harassment will dealt with and what to expect if you report sexual harassment at work.
The workplace policy says how your employer will prevent or reduce the risk of workplace harassment. It also says how complaints can be made and how the employer will investigate complaints.
The workplace harassment policy should include:
- how to report harassment
- how to report to someone other than a supervisor or boss, if your supervisor or boss is the harasser
- how reports will be investigated
- a statement that the employer won’t share the names of people involved, unless it’s necessary to complete an investigation or required by the law
Although workplaces aren’t required to have a policy on addressing violence, employers still have an obligation to make sure employees are safe by assessing any role that may be at risk of violence and reducing that risk wherever possible.
Your employer’s workplace harassment policy must be in writing and readily available at your workplace. If there is no policy at your workplace, or if your employer isn’t following it, you can report that to the Workers Compensation Board at 1-800-237-5049.
See a sample workplace harassment policy (page 13).
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.
Joint Health and Safety Committee or health and safety representative
Your workplace may have a Joint Health and Safety Committee (JHSC) or a health and safety representative. They identify safety risks and offer recommendations to your employer on how to keep the workplace safe. They must help the employer develop and implement a policy on workplace harassment. While their specific duties can vary, their role will always include monitoring the employer’s obligations under the OHSA.
Workplaces with 20 or more workers must have a JHSC. If a workplace has between five and 19 employees, the JHSC is optional; however, your workplace must then have a health and safety representative.
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 sexual harassment policy. It might be called something else, like a human rights policy, a respectful workplace policy, or a bullying and 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.
- 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. But if you want, you can 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 policy.
- They are supposed to understand the OHSA Workplace Harassment Regulations and other applicable laws.
Investigations should be started promptly. There is no set time frame for how long an investigation should take. However, your employer may have their own timelines in their harassment policy. What is important is that the investigator conducts a thorough and fair investigation into your complaint.
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 under the OHSA Workplace Harassment Regulations and ESA definitions. To do that, they will talk with you, the person who harassed you, and anybody who witnessed it.
If the investigator decides that what happened is sexual harassment, they will then determine what steps may be taken to protect you from more harassment, reprisals, or retaliation while the investigation continues.
If the investigator decides that what happened does not meet the definition of sexual harassment, you should be informed in writing.
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.
There may be other people there at the interview. If your workplace has a Joint Health and Safety Committee, its worker representative may be there. If there is a health and safety representative, they may be there. There may be someone else present at the interview solely to take notes.
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, provided they are not a witness. 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:
- Call the Occupational Health and Safety Division of the Workers Compensation Board (1-800-237-5049). If it agrees that your situation is covered by the OHSA, it may order an investigation.
- Contact your union.
- Contact your workplace health and safety rep.
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 Workers Compensation Board. If they agree, they have the power to order a new investigation.
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 of the Workers Compensation Board. Or, 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. Or, you can report it to the Workers Compensation Board of PEI.
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 your employer whether the investigator thinks sexual harassment happened and, if so, what your employer can to do keep the workplace safe from sexual harassment in the future.
If the harasser is someone who works for your employer, the investigator may recommend they be fired or transferred, or suspended, or reprimanded. The investigator may also recommend changes to the workplace to make it safer, like changes to shifts or scheduling, policy changes, or education.
Your employer isn’t required to follow any of the investigator’s recommendations. 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. See Getting punished for complaining and how to protect yourself. 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.
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 Occupational Health and Safety Act, Employment Standards Act, 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 of the Workers Compensation Board. It may send its own inspector 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 Workers Compensation Board 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 following their duty under the OHSA.
- The same complaint of sexual harassment can be included in an application to the Human Rights Commission. It investigates and 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. Consider discussing your situation with a lawyer. You must file a complaint with the HRC within one year of the alleged discrimination.
- You can file a complaint with the Employment Standards Board. If an inspector finds that your employer has violated the Employment Standards Act, they will talk to the employer about the problem and how to correct it, such as complying with the sexual harassment provisions of the Employment Standards Act.
- 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 six 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. See Working with your union. 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.
- 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 believe your job has changed so much 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.