Should the Recent Canadian Law Against Sexual Harassment Be a Model for Federal and State Law?
The Canadian Law Against Sexual Harassment Mandates All Incidents
Following several high profile cases of sexual violence and harassment in the workplace, Canadian lawmakers have passed a law entitled the “Sexual Violence and Harassment Action Plan.” The law expanded the meaning of workplace harassment and encouraged everyone to play a role in stopping “sexual violence, sexual harassment, domestic violence and other forms of abuse.” This law went into effect in September 2016.
The most notable aspect of the Action Plan is that it mandates all incidents, allegations and complaints of sexual violence and/or harassment in the workplace be investigated. If the internal investigation conducted by the employer appears flawed or incomplete, inspectors with the Canadian Ministry of Labour have the authority to hire an independent investigator (at the employer’s expense) to investigate the allegations. Additionally, Canadian companies are required to designate individual(s) tasked with conducting the investigation. Other important aspects of this law are that the employers must maintain procedures on how the details of the investigation will be kept confidential and provide written results of the investigation to both the complaining employee and the alleged harasser. Employers must also review their policies once a year to ensure adequate compliance with the law.
Federal and state laws in the United States do not go nearly as far. While having an anti-harassment policy in place and performing a thorough and effective investigation are important considerations for employers defending harassment cases, they are by no means required. If the goal is to eliminate discrimination and harassment in the workplace, should the Canadian Action Plan serve as a guide for changes to existing federal and state laws? Given that harassment occurs even in those workplaces with such policies in place, perhaps such changes will not serve to deter harassers. It will be interesting to see what effect, if any, the Action Plan has on our laws in the United States.