Key Takeaways
On this page you will learn:
- What workplace harassment and workplace sexual harassment are in the law
- Your rights to refuse work due to workplace violence
- Protections for temporary foreign workers and healthcare workers experiencing abuse in the workplace
- What workplace discrimination is under the law and the legal avenues to address it
Table of Contents
**This toolkit is meant for people working in the care economy, or for community organizations who provide services to care workers. It is legal information, and is not intended to replace legal advice.**
What is workplace harassment?
The Occupational Health and Safety Act (OHSA) and the Ontario Human Rights Code (OHRC) protect workers against harassment, which is:
- Unwanted or unwelcome (vexatious) conduct or remarks against a worker in a workplace
- And can include the use of technology
- Should be known to be unwelcome
Some examples of harassment in the workplace are:
- Bullying
- Intimidating or offensive jokes or innuendos
- Displaying or circulating offensives pictures or materials
- Offensive or intimidating phone calls, emails, or other communications
- Sexual harassment
A worker could be harassed at work by a customer, client, patient, student, co-worker, supervisor, or a stranger.
How many times does unwanted conduct have to happen for it to be harassment?
- Harassment is more than one instance of vexatious conduct, however, it can also be a single instance if, for example, a supervisor required a worker to go on a date with them to get the job.
- Harassment can happen over a short or long period of time.
You cannot refuse to work because of workplace harassment alone, but your employer must take actions because of the harassment.
If a worker is being discriminated against in the workplace, this is considered harassment that is also protected against in the Ontario Human Rights Code (OHRC). For more information visit our sections on workplace sexual harassment and workplace discrimination.
Resource
For more information on workplace harassment under OHSA visit the Ontario government website.
For more information on workplace discrimination and sexual harassment under OHRC read this guide from the human Rights Legal Support Centre.
What is workplace sexual harassment?
Generally, sexual harassment is unwanted physical or verbal behaviour that offends or humiliates you based on your sex, sexual orientation, gender identity or gender expression. Typically, there is a pattern of this behaviour – it happens more than once. However, a single serious incident can also be considered workplace sexual harassment.
Workplace sexual harassment is defined in the Occupational Health and Safety Act (OHSA) as:
Vexatious comments or conduct against a worker in a workplace
- Because of:
- Sex
- Sexual orientation
- Gender identity
- Gender expression
- Person engaging in conduct or making comments they know, or ought to know, are unwelcome
- Can also take place online
Sexual solicitations or advances
- Made by someone who is in a position to give or deny a benefit or advancement to a worker, and…
- Knows or ought to know that conduct is unwelcome
Source: [OHSA, s. 1(1)]
Sexual harassment in the workplace can look like:
- Unwelcome sexual contact and remarks
- Leering (inappropriate staring)
- Unwelcome demands for dates
- Requests for sexual favours
- Spreading sexual rumours (including online)
- Displays of sexually offensive pictures or graffiti
Sexual harassment in the workplace can also be based on gender identity or expression. For example:
- Using the wrong pronouns for a person
- Insults about someone’s appearance related to their gender
Learn more by clicking on the relevant tab below:
Unionized Employees
You will likely be protected under your collective agreement, so you should contact the person listed in your workplace anti-harassment policy or union steward. You can initiate a grievance which can lead to an investigation and result in a mediation.
Outcomes can include the workplace being required to provide training and/or disciplinary measures for the harasser. You cannot start the grievance process and a human rights claim – you can only choose one process.
Resource
Read more about how to address sexual harassment at work.
Non-Unionized Employees
Your workplace should have an internal complaints process which tell you:
- Who to direct your complaint to
- What the process will be regarding investigation and resolution
- What is confidential or not
- What protections you might have against reprisal or dismissal
Outcomes can include a mediation and/or the harasser receiving discipline, being required to apologize, changing schedules, etc. You are still able to make a human rights claim, or other legal remedy, even if you go through your workplace’s internal process.
Resource
Check out this fact sheet on sexual harassment in employment from the Ontario Human Rights Commission.
What is workplace violence?
Workplace violence is when:
Physical force is used against a worker that results in an injury, or could result in an injury
There is an attempt to use physical force against a worker that could cause an injury
There is a threat to use physical force against a worker that could cause an injury
Source: [OHSA s. 1(1)]
Examples may include:
- Verbal threats of a physical attack on a worker
- Threatening communications, such as notes or emails to a workplace
- Bringing a weapon to a workplace
- Hitting, punching, or kicking a worker
Your employer has the responsibility to provide a safe workplace, including addressing workplace violence.
An employer must address violence in the workplace when it is another worker, employee, student, volunteer, customer, client, patient, or stranger (under the Occupational Health and Safety Act).
This includes:
- Situations where the violent act is done by a person who has a medical condition that makes them act out physically
- Situations where two people are fighting and the worker is injured trying to intervene
This does not include:
- Accidental situations
Can you refuse work if it is unsafe because of workplace violence?
Most workers have a right to refuse work because of workplace violence. However, certain workers, including certain types of care workers who provide essential services, may not be able to refuse in some circumstances.
If you work in a:
- Hospital
- Long-term care home
- Psychiatric institution
- Mental health centre
- Rehabilitation facility
- Residential group home or other facility for persons with physical, mental, or developmental disabilities
- Laundry, food services, or facility used by the facilities or institutions listed above
You cannot refuse work if:
Danger or violence is inherent or normal condition of the job, or…
Refusing would directly endanger the life, health or safety of another person
*This is not a full list of exceptions (also includes police, corrections and custody facility workers, and firefighters). Source: [Occupational Health and Safety Act, RSO 1990, c O.1, s. 43(1)-(3)]
Resource
For more information read Health and Safety Guidelines – Workplace Violence and Harassment: Understanding the Law from the Ministry of Labour.
What to do if you experience workplace violence or harassment?
If you have experienced workplace violence and harassment:
Keep a record of incidents:
- Include, dates, descriptions, details, names
- Take screenshots if it is digital
Check your workplace’s violence harassment policy for the proper person to report to (i.e. supervisor, employer, manager).
To report or not to report
You can report incidents of violence or harassment to your employer, however, there may be good reasons why you do not want to or cannot report. If reporting is not a good option, please see these resources.
Options
Click on the plus sign for more details about your options below:
You can file a workplace health and safety complaint under OHSA with the Ministry of Labour, Immigration, Training and Skills.
You can file a workplace health and safety complaint under OHSA with the Ministry of Labour, Immigration, Training and Skills.
- This can result in your workplace receiving an inspection
- This will not provide you with compensation
- This will not result in a mediation or a determination of harassment
- Needs to be within 2 years of the harassment taking place
- Consult an organization that can help you fill out a complaint – see the Resources page
You can leave your job
If you are a migrant, you cannot be deported by your employer
- BUT if you are a migrant under an employer-specific work permit, you can only work for the employer on your work permit – please see section on “What do I do if I am a temporary foreign worker experiencing abuse in the workplace?”
You can seek legal advice
Please see the Resources page for low or no-cost legal services
Resource
For more information read Filing a workplace health and safety complaint on the Ontario government website.
What do I do if I am a temporary foreign worker experiencing abuse in the workplace?
Temporary foreign workers can experience abuse in the workplace and may be afraid to report the behaviour or leave the job out of fear of losing their immigration status (ability to stay and work in Canada). If you are a temporary foreign worker who is experiencing abuse in the workplace, you may be able to apply for an open work permit for vulnerable workers.
This is a temporary work permit that lets you apply to almost any employer in Canada. The goal is to allow workers in abusive situations to leave their employer without losing the authorization to live and work in Canada.
Learn more by clicking on the relevant tab below:
Are you experiencing abuse or at risk of being abused at your job?
For this open work permit, the law defines four types of abuse:
- Physical
- Sexual
- Psychological
- Financial
Some examples of abusive behaviour are:
- Physical harm or assault
- Threats or intimidation
- Forcing you to work in unhealthy or unsafe conditions
- Unwanted sexual contact or comments
- Stealing from you or taking your wages
- Controlling behaviour like keeping you from seeing friends or family, or stopping you from going places
Are you eligible to apply for the open work permit?
To apply for an open work permit as a vulnerable worker, you must be:
- In Canada
- Hold a valid employer-specific work permit (or applied for a renewal)
- Experiencing abuse or at risk of being abused in relation to your job in Canada
You will have to provide a letter describing the abuse and/or other evidence to support your claim.
Examples of evidence include:
A letter, statement, or report from an abuse support organization or healthcare professional
A sworn statement, also known as an affidavit, from yourself
An official report you submitted to an enforcement agency
Bank statements and/or pay stubs
A victim impact statement
Emails and text messages that support your claim
Photos that support your claim, showing injuries or hazardous working conditions
Witness testimony
Generally, the open work permit is not renewable and is meant as a temporary measure until the worker can apply for another employer-specific work permit.
Resource
For more information on the open work permit for vulnerable workers read this factsheet or visit the official Government of Canada webpage to learn more.
Are there any special protections against workplace violence for health care workers?
There is a specific section of the Criminal Code of Canada that prohibits violence and intimation of health care workers that prevents them from carrying out their duties.
This applies to “health professionals” who provide health services under the laws of a province. (s. 423.2(5)).
The law prohibits:
- Intimidating a person who is trying to access health services from a health professional
- Intimidating a health professional to prevent them from doing their job
- Intimidating a person whose job/duties are to assist a health professional to prevent them from fulfilling those duties
- Obstructing or interfering with someone else’s access to health services provided by a health professional
Source: [Criminal Code of Canada s. 423.2(1), 423.2(2)]
What is workplace discrimination?
The Ontario Human Rights Code protects people from being discriminated against in the workplace based on certain protected grounds:
Race
Ancestry
Place of origin
Colour
Ethnic origin
Citizenship
Creed
Sex
Sexual orientation
Gender identity
Gender expression
Age record of offences
Marital status
Family status
Disability
Source: [OHRC s. 5(1)]
2SLGBTQIA+ care workers often face discrimination in the workplace and report high rates of mental health issues because of the impacts of discrimination.
[Source: Caring in Canada: survey insights from caregivers and care providers across Canada]
What can I do if I am discriminated against in the workplace?
If you have experienced discrimination or harassment under the OHRC, you can file an application to the Human Rights Tribunal of Ontario (HRTO).
There are time limits to making legal claims, called limitation periods. For an application to the HRTO, you have 1 year to file your application from the time when the incident occurred.
Source: (s. 34(1) of the OHRC)
What happens when you file an application to the HRTO?
There will be a mediation – to help you reach an agreement with your employer that addresses the issues.
If there is no agreement, the HRTO will hold a hearing to resolve the issue.
At the hearing, you will have to show that you were discriminated against or harassed, which can be difficult to prove. You will have to provide evidence, so it is important to keep records of like texts, emails, or other documents.
Potential outcomes:
- HRTO can order your employer to pay compensation
- Can make orders to prevent further violations
Resource
If you are in Ontario, you can check the Human Rights Legal Services Centre website for more detailed information.
Please check our Resources section to find places you can contact if you need legal advice.
Case Study Examples
Learn more by clicking on the relevant tab below:
Discrimination based on sex, gender, and gender expression
S.R. v. DLPH Hambleton Group Inc. (aka Burger King Franchise 3566), 2024 HRTO 1491 (CanLII), <https://canlii.ca/t/k7hp4>
SR worked at a Burger King restaurant where he informed the staff that he was transgender man with he/him pronouns. The managers often misgendered him. SR resigned to undergo gender-affirming surgery and was hired back a few months later. The managers continued to misgender him. SR made a formal complaint to the general manager who through her subsequent actions, outed SR as transgender to the other staff. SR was gossiped about by the other staff and finally quit due to feeling unsafe at work. SR was also “deadnamed” on the envelope of his final record of employment.
SR applied to the Ontario Human Rights Tribunal, who found that he was discriminated against based on sex, gender, and gender expression and he was forced to quit due to harassment and discrimination.
The Tribunal awarded him lost wages and damages in the amount of $26 000.
Discrimination based on religion, place of origin, and gender
The Human Rights Legal Support Centre is a great resource for people who are experiencing discrimination in the workplace. For example, they were able to obtain a settlement for a woman who was discriminated against based on her religion, place of origin, and gender at her place of a work. A colleague who worked her with at a retirement home made offensive comments related to her wearing a hijab. Her requests to work opposite shifts from the colleague was denied and no other action was taken by management.
The settlement included financial compensation, human rights training for staff, and a positive letter of reference.
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