Mind the (#MeToo) Gaps: Post-2016 workplace sexual violence reform in Ontario

  • 11 aoĂ»t 2022

Disponible uniquement en anglais.

par Meredith Wilson-Smith, laurĂ©ate 2022 du concours de dissertation pour Ă©tudiants et Ă©tudiantes en droit de la Section du droit du travail et de l’emploi.

Introduction

In 2017, American actress Alyssa Milano posted on Twitter asking sexual violence survivors to post “#MeToo” to share the global nature of sexual harassment and abuse. She spoke about her own sexual violence experience while working on a film more than two decades after the incident.1 Her post went viral, eventually leading to widespread media coverage and discussions of sexual harassment that triggered many high-profile job terminations. However, the term “Me Too” was first used in this context by Black American feminist activist Tarana Burke, who sought to empower survivors through strength in numbers. Burke was inspired to start her movement while working at a youth camp, when a child disclosed a sexual violence experience to her.2 Clearly, one constant of the ever-evolving #MeToo movement is its close consideration of workplace sexual violence. Moreover, it is difficult – if not impossible – to imagine a social movement that could focus on lived sexual violence experiences without considering the workplace. Employment issues permeate every aspect of life, particularly if the work is precarious or held by a member of a marginalized community. Workplaces serve as microcosms of societies, given their hierarchical structure and resultant power imbalances.3

Specifically, formal disclosure is an essential component of ensuring a successful workplace sexual harassment response framework. In 2014 – before the #MeToo movement took viral flight – a national survey showed 28% of women surveyed had been sexually harassed at work, but 4 out of 5 of those people had not reported the behaviour to their employer.4 In a 2018 update to that research, 72% of women who experienced workplace sexual harassment and 73% who experienced workplace sexual assault did not report their experience.5 Only 1 in 10 women said they reported their experiences and received satisfactory solutions.6

These statistics underscore the purpose of this research paper: to critically evaluate how Ontario’s 2016 amendments to the Ontario Health and Safety Act have shaped workplace sexual violence reporting and investigation frameworks in the wake of the #MeToo movement.7 This paper determines that, while not exhaustive, Ontario legislation’s increased detail in dictating more survivor-centred workplace response processes has allowed employees greater workplace safety by offering more space for confidential and technologically-informed disclosure.8

While the #MeToo movement has found online success through widespread engagement, workplace-related legislation meant to protect citizens from such harassment and abuse is frequently lacking in its capacity to meet a similar standard of progress.9 In Ontario, as a result of that, private workplaces are often left to determine their own sexual violence response mechanisms within legislation’s parameters. Legislative guidance can be helpful to employers who lack the resources and expertise to develop their own nuanced understandings of workplace sexual violence sufficient to promptly and effectively respond to incidents between their employees. As such, the gaps within Ontario’s legislation leave space for employers to fail their employees who have experienced sexual violence at work, despite those incidents endangering fundamental workplace safety.

Broadly, this paper addresses how workplaces have interpreted legislative and legal guidance to apply to their employees’ lived experiences of their employees. In doing so, the following section explores the legislative reform background of #MeToo in Ontario workplaces to contextualize the debate at hand. The paper’s third section explores various existing workplace sexual violence response models through a theoretical literature review. The fourth section evaluates practical recommendations for workplace institutional structures borne from the research analyzed. The fifth section addresses the counterargument that some recommendations for enhanced technology use and third-party investigations are not universally feasible due to the financial and informational resources required to implement them, which poses an ongoing imbalance in workplace response procedures across the province. Finally, the conclusion affirms that, while Ontario workplace investigations and assessments have become more accessible for survivors, the reporting mechanisms themselves could improve through workplaces developing consistently transparent and survivor-informed processes, including using technological applications.

#MeToo legislation in Ontario workplaces

In Ontario, both provincial and federal legislation govern employers, who are “responsible for ensuring that [an] internal responsibility system is established, promoted, and that it functions successfully” in this context.10 Ontario’s Occupational Health and Safety Act11 (OHSA), first established in 1978, governs workplace safety including sexual violence, although the Act has been broadened significantly over time.12 In 2010, the provincial government amended the OHSA and its provisions through Bill 168, which set out employers’ obligations to develop programs and policies to protect workers from what was termed “workplace harassment” and workplace violence, among other things. At that time, “workplace harassment” was legislatively defined as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”13

In 2015, the provinceamended the OHSA once again by tabling Bill 132, also known as the “Supporting Survivors and Challenging Sexual Violence and Harassment Action Plan Act.”14 Under this legislation, which passed royal assent in 2016, the definition of workplace sexual harassment was added to expand the OHSA workplace harassment definition:

  • “Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
  • Making a sexual solicitation or advance where the person making it is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.”15

By explicitly defining workplace sexual harassment and adding it to the legislation governing workplaces, the Ontario government demonstrated an increased attention to spotlighting workplace behaviour that may have otherwise gone undetected. Notably, “conduct” can constitute extended behaviour or an isolated incident. The definition is also broad enough to include “psychological harassment” or “personal harassment.”16 This legislative characterization of workplace sexual harassment is similar to Ontario’s Human Rights Code prohibitions on sexual harassment and sexual solicitation. Additionally, Canada’s Criminal Code applies to workplace matters such as violent acts, sexual assault, threats, and behaviours like stalking outside the amended OHSA.17

All employers in Ontario are subject to the OHSA, and per Bill 132’s amendments, they must now prepare policies and review workplace sexual violence policies at least once annually.18 Those same employers must also now establish and maintain programs to implement these workplace violence and harassment policies, along with providing appropriate information and instruction to workers about program contents and confidentiality.19 The Act does not explicitly offer confidentiality guidelines – it leaves details to the discretion of employers. However, the Act does provide through this section that “the investigator must ensure the investigation is kept confidential unless necessary to conduct the investigation or as required by law.”20 For an investigation to be legislatively considered “appropriate,” employers must be transparent to employees regarding the level of confidentiality available given the nature of their disclosure.21

Bill 132 also significantly developed certain mandatory requirements for workplace reporting programs, including “measures and procedures for workers to report incidents of workplace violence”.22 Prior to the bill, OHSA s. 32.0.6(2)(b) and (c) stated workplace programs must “set out how the employer will investigate and deal with … complaints of workplace harassment” and “include any prescribed elements”.23 Bill 132 repealed those subsections and replaced them with more thorough details about precisely what employers must include in their sexual violence response programs. This includes the ability to report workplace harassment “to a person other than the employer or survivor, if the employer or supervisor is the alleged harasser”, which shows greater attention to the nuances of workplace power dynamics.24 Further, that section’s 2016 amendments require employers clearly provide survivors and alleged perpetrators with procedures for receiving information about investigation results or corrective action.25

Under Bill 132, the OHSA placed a greater onus on employers to respond to workplace sexual violence incidents than before.26 For example, the bill added a provision to OHSA whereby government inspectors could order employers to conduct third-party investigations if internal investigations are deemed unsatisfactory.27 This amendment provides a ‘safety net’ for survivors if faced with insufficient initial responses from their workplaces. The bill also created a new statutory duty for employers to investigate workplace harassment “incidents and complaints.”28 Crucially, this made it essential for lawyers to have internal competencies to conduct workplace investigations. This made it essential for employers to not only build out investigation procedures (whether internal or external), but also know when to trigger those investigations, even when employers receive information outside a formal complaint.29 It is further essential that if those investigations conducted are internal, employers understand how to analyze the information they receive from a workplace investigation, write a report, and use that report to inform parties of investigation outcomes in writing.30

Clearly, the #MeToo movement in Canada as applied to workplaces takes place on a stage bolstered by the provincial legislation discussed: specifically, the OHSA and its 2016 Bill 132 amendments. While the legislation was amended shortly before the #MeToo movement arose, the movement has likely made workplaces more aware of the required measures to address sexual violence. Nonetheless, the requirements under this legislation (such as confidentiality) remain relatively vague. By remaining open to employer interpretation to a certain extent, despite recent reforms, the OHSA fails to provide survivors with transparency by leaving Ontario employers significant leeway to develop their own internal standards surrounding legislation implementation. This paper seeks to resolve how workplaces have interpreted broad legislative statements to apply to employees’ experiences. As a result, the following section will consider various bodies of research in analyzing how this interpretation has taken shape in practice.

Literature review

A substantial body of literature explores how legislation and social and professional norms alike underpin workplace institutional structures responding to sexual violence in those workplaces. Both social science and legal sources are included here to explain the wide-reaching impacts of sexual violence support and response structures in workplaces. A normative lens is used to analyze those sources. This is based on Veer et al’s writings that “allies represent the people in a community who identify as part of the culturally normative and dominant members of a society, but who are willing to take a stand to support and advocate for the vulnerable, oppressed, and marginalized, even at the expense of their own privilege.”31 Necessarily, legal reform wields power within a system to affect a meaningful impact on how society operates.

First, this literature review considers research surrounding internal investigations’ benefits, drawbacks, and potential for improvement under Ontario’s recent legislative reforms. Second, it contemplates external investigations and how they may be employed to bolster those legislative gaps in internal investigation requirements. Finally, the section explores how technological considerations might overarchingly improve those internal and external workplace structures addressing sexual violence.

Internal investigations and limitations requiring an increased focus

Post-#MeToo, companies have sought to build up their internal mechanisms and policies to effectively respond to workplace sexual violence.32 The quality of those internal investigations also matters more under the amended legislation. New OHSA section 32.07 requires employers ensure that:

  1. an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances; and
  2. the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker for the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation.33

If a s. 32.07 internal workplace investigation is flagged as insufficient by an employee or if the employer fails to investigate, the amended legislation holds employers accountable. New OHSA section 55.3(1) provides a Ministry of Labour inspector can order the employer to conduct a third-party investigation at the employer’s expense.34 The amended legislation makes it essential for employers who offer internal investigations to not only understand which behaviours constitute workplace sexual violence: they must also know when to conduct them and which internal competencies are required for unique internal workplace dynamics.35 A workplace choosing to offer an internal investigation to a survivor must keep certain factors in mind. These include the seriousness of allegations, whom those allegations are made against and their hierarchical role within the company, the internal ability to undertake an objective process, and the costs involved.36

As seen through OHSA s. 55.3(1) above, employers may face serious repercussions if they improperly undertake an investigation. Canada’s Cultural Human Resources Council published a 2019 study on workplace reporting and investigations that included several considerations for employers conducting an internal investigation. For instance, internal investigators (often from internal human resources departments) would help their own processes by providing employees with a crisis checklist and clear steps to undertake in an investigation, including confidentiality guidelines and means to anonymously report if possible and so chosen by the reporting survivor.37 Notably, anonymous reporting can be useful to encourage disclosure if survivors suffered workplace sexual violence while engaging in activity they fear their employer might disapprove of or hold against them.38 However, anonymous reporting also poses potential costs to the survivor, including denying them the opportunity to pursue legal action against the accused due to a lack of admissible evidence that might impact credibility considerations inherent within workplace investigations and assessments.39

Employers should be clear with employees about the difference between a criminal standard of proof and a civil threshold when offering possible solutions.40 Further, an internal investigator should have access to templates and existing processes, including a “decision-tree” framework to help them shape their response effectively.41 Finally, a lawyer or legal entity should be consulted in developing these templates and processes, even if solely initially, to ensure the investigations are legally defensible.42

External investigations as a tool to bolster legislative gaps

While expansive, Bill 132’s reforms leave space for employer interpretation in terms of factors like confidentiality and available remedies. This is where external investigations may be employed to fill the procedural cracks through which survivors may otherwise fall.

A key concern highlighted by survivors is reporting processes’ inefficiency. Common concerns about internal reporting systems include fear of reprisal against survivors and bystanders who lodge complaints.43 Women surveyed in American workplaces have highlighted being listened to and trusted as the most important features of a workplace sexual violence reporting system.44 Independent or external investigators exist to seek to bridge that gap and provide a reliable service: they engage in assessment processes that provide participants with the comfort of anonymity (if offered by the investigator based on context) or confidentiality.45 External investigators use interviews and surveys to “deep-dive” into experiences at work and are then able to provide their employer clients with a comprehensive and systemic picture of their workplace culture, including significant problems those employers may not have been aware of.46

Independent investigators may be an ombudservice, which acts as an organizational mediator between employers and staff intending to level out the power in an organization.47 Human resources consultants and mediators are also considered external investigators. Mediators are increasingly being called upon to help parties settle workplace sexual violence disputes.48 However, the Ontario Ministry of Labour’s Bill 132 guidelines specify that “alternative dispute resolution or mediation cannot replace the investigation.”49 Third-party investigators may otherwise be trained employment lawyers and may wield third-party reporting services in their work, such as technological applications listed below.50 External investigators are, critically, often more familiar with relevant law and legislation when addressing workplace disputes. Those third-party lawyers can engage in fact-finding that facilitates legal advice and recommendations to be rendered by in-house or outside legal counsel, based on their industry knowledge of the legal structures in place in the relevant jurisdiction (such as the OHSA in Ontario).51

Per the Cultural Human Resources Council's research, there is strong support across Canadian employees for third-party independent workplace services to provide information, resources, legal advice, and/or counselling as required.52 However, the study reported mixed support for these third-party investigators to advocate on behalf of survivors, such as attending meetings with them or helping them to fill out paperwork, and little support for the third party to legally represent the individuals.53

Critically, the study also reported mixed results in terms of whether external reporting mechanisms should be fully anonymous for complainants. Notably, the OHSA is absent any mention of anonymity – its use is at the discretion of external workplace investigators. Some benefits of anonymity include: an increased chance of lack of reprisal against the survivor and enhanced accessibility for survivors who may not feel comfortable reporting against offenders in positions of power.54 However, some have raised a fear of anonymity promoting false allegations and abuse of reporting systems, which would be counter-productive to progress in resolving workplace sexual violence.55 Further, some concerns revolve around anonymity doing little to normalize reporting that might ultimately resolve problematic systemic workplace dynamics.56

In all, external investigators may be used to support internal investigations and improve their standards, along with providing a level of objectivity and transparent due process to often-vulnerable survivors seeking to report their sexually violent experiences in the workplace.

Technology as a means of enhancing reporting

In post-#MeToo reporting studies, technology has increasingly become a relevant tool to amplify workplace sexual violence reporting. For instance, in 2017, a Google spreadsheet collecting allegations of assault, harassment, and “creepy behaviour” against men in American media began circulating among women in the media industry.57 Labelled the “Shitty Media Men” list, the document provided viewers with the ability to add their own accusations to the spreadsheet and fill in men’s names, professional affiliations, and the accused behaviours. sexual violence reporting.58 This list was shut down within days following due to the implications for those named without due process associated with the allegations.

However, since then, online applications have been developed to more privately and officially facilitate reporting sexual violence. Several of them take the format of “information escrow,” where the app’s developers work as third-party agents to hold the relevant incident information and disseminate it under certain conditions to which the survivor agrees in advance.59 For instance, Callisto is a non-profit online platform utilizing information escrow for clients spanning industries. One condition under which Callisto will release sexual violence reports to the relevant internal investigative authorities is if the same perpetrator is accused multiple times within the app. Callisto’s founder, Jessica Ladd, states she was motivated to create the service by the statistic that 59% of sexual assaults would be preventable if it were possible to stop repeat perpetrators earlier on.60

These online platforms, including information escrow systems, are useful for several reasons: they preserve evidence if a survivor does not yet want to report, and they are secure and time-stamped.61 The apps provide survivors with a level of autonomy over their decision-making by offering clear instructions as to how they work so those survivors can choose the best service for their solution needs.

Similar applications include STOPit, which allows individuals to report harassment directly to their Human Resources departments with multi-media evidence attached if so desired. I’ve-Been-Violated prompts survivors to make time-stamped videos where they can speak about the sexual violence they are reporting and choose to contact the police who may, in turn, reach out to the app’s developers to obtain the video in question. Likewise, Canadian company RallyEngine Inc. partnered with Callisto in 2017 to bring a similar reporting application to Canada called SafeSpace. Just as the American Callisto works, SafeSpace provides a documentation and reporting tool with three options for survivors: to record sexual assault, to report electronically to authorities, and to only report if another app user also identifies the perpetrator.62

However, despite their usefulness, these reporting applications also face legal and ethical difficulties surrounding transparency and security. Unless clearly stated otherwise by workplaces or external counsel, survivors disclosing through applications may wrongly believe the application will take action on their report rather than the institution the app reports to, such as Human Resources departments.63 Survivors may not read an app’s dense terms and conditions before use, particularly given their potential emotional vulnerability after the traumatic workplace experience, which can amplify this ambiguity.64 While using a reporting app adds privacy to a process that can often be re-traumatizing, a survivor may over-trust the application without understanding how their information will be used.65

This confusion surrounding relevant authorities may have further-reaching problems as well. For example, without understanding which desk their report will end up on, a survivor may only answer the app’s prompts at the bare minimum to avoid further traumatization.66 If unaware of the app’s reporting process, a survivor may believe their incomplete account is sufficient when more information is needed to take action against the accused perpetrator.67 Further, it is not always clear who has control of and access to the data disclosed through these applications, which poses confidentiality concerns and amplifies potential for re-traumatization due to survivor sensitivity around the incident in question.68 As well, certain apps – like I’ve-Been-Violated – were not necessarily developed with clear expertise around sexual violence, nor sensitivity to unique jurisdictional requirements such as Ontario’s legislative OHSA structure.69

These technological resources can enable confidentiality and information dissemination: they reduce social costs around reporting by allowing for the ability to send an account electronically rather than recounting it in person.70 Further, they would reduce logistical costs by allowing third-party verification for the timing of a survivor’s report, allowing for faster distribution.71 However, given this, certain features must be reckoned with to ensure adherence to due process and survivor safety and comfort. For instance, these applications must be easy to use and work sensitively to survivor experiences to encourage their use.72 Further, some apps do not distinguish whether those reporting are witnesses or survivors, which could falsely enhance reporting rates.73 All of this should be considered when employers decide whether they will use applications as resources to bolster their investigations and if so, which applications to select.

Analysis – Recommendations

Based on the reviewed literature, Ontario’s amendment of workplace sexual violence response structures has been broadly positive. While the 2016 OHSA legislation amendments hold employers to a higher standard through increased requirements for sexual violence investigations, the #MeToo movement’s discourse has offered increased accessibility and scope for those investigations, including increased confidentiality and technology options within response mechanisms. However, workplaces remain somewhat independent in how they choose to undergo those investigative processes borne from reported “incidents.” While workplaces can opt for direct third-party investigations from the get-go instead of building out their internal systems, they must proactively and transparently explain the external system in question to employees under OHSA’s 2016 amendments.

With this in mind, this paper makes the following critical proposals to better align Ontario workplace sexual violence response structures with the #MeToo movement’s spirit of support and reduced stigma for survivors. First, wherever possible, external or third-party investigators should be deployed in workplaces to benefit from the objectivity and established, reliable procedures often in place. Second, across internal and external investigations, workplaces should offer transparency around their disclosure and investigation processes to combat stigma around reporting and encourage survivor comfort. They should also incorporate anonymous reporting through online applications where the survivor indicates a desire for anonymity and clearly understands the implications anonymity might have on their potential pursuit of sanctions against the accused.

Scholar Sara Ahmed wrote in her book “Complaint!” that workplace investigation systems can become a form of institutional violence as the “experience of violence that follows trying to redress [sexual] violence.”74 Hierarchies enable harassment: as a result, workplace sexual violence reporting often works as “complaint activism” that can remind organizations of broader systemic issues by raising individual concerns.75 When employees share their complaints informally or formally, they can “end up alienated” from what happened in trying to seek solutions for workplace sexual violence.76 Often, survivors are forced to reflect at length on policies and procedures available to them to seek the best solution for their personal context – as a result, they “often end up having to administer the process.”77 Thus, transparency is critical: regular and proven accountability is essential to empowering survivors to trust their workplace structures enough to disclose and seek remedies.78 Workplace sexual violence response systems must proactively lay out their processes to encourage survivors to disclose promptly and in good faith.

Furthermore, confidentiality is critical as a workplace response offering that “open[s] the door for complaints.”79 The option of confidentiality alone can remove the fear of reporting or re-victimization for the survivor, along with redressing power imbalances within workplace institutional hierarchies.80 Though survivors’ required confidentiality standards will differ based on various personal considerations, offering the option should be institutionalized.

Finally, applications should be wielded where resources allow in internal investigations to allow survivors remove – theoretical or realistic – from their workplace dynamics to encourage their comfort in disclosing. Whether Canada’s Callisto-based SafeSpace or another Canadian application like Grant Thornton’s Confidential Anonymous Reporting for Employees or ClearView Connects, survivors’ trust in internal reporting would benefit from anonymous and confidential reporting systems delivering their reports directly to their employers.81

Above all, the importance of using either external or internal professional, trained workplace sexual violence investigators cannot be understated. Investigators must be able to unequivocally show their abilities to independently evaluate employee-related allegations and assess credibility.82 Ontario employers are mandated to offer sexual violence response services aligned with the provincial OHSA legislation – but, additionally, the #MeToo movement thematically encourages those services also align with the social norms borne out by the movement in terms of accommodating survivor needs and comfort. Available literature shows that, to do so, Ontario employers should offer services predicated on confidentiality, security, and objectivity.

Counterargument

To address the realistic applicability of this paper’s considered recommendations, counterarguments and limitations must be addressed in turn. Primarily, systemic privilege, including well-resourced employers in urban locations, allows those workplaces to pursue external investigations or technological support through accessing reporting applications where less-resourced workplaces are unable to do so. Sara Ahmed wrote in “Complaint!”, “One way of stopping complaints is to make them unaffordable.”83 Within those less-resourced workplaces, emotional, mental, and practical barriers – including reporting stigma – can legitimate certain voices over others, harming internal processes dealing with investigations.84

That said, most applications discussed are free to use and often provide lists of resources for survivors and administrators alongside their reporting mechanisms.85 Further, technology solutions for anonymous reporting reduce reporting costs longer-term by detecting repeat perpetrators, thereby reducing survivors’ risk of “going it alone.”86 An Australian Deloitte report noted the productivity costs from workplaces that fail to sufficiently address workplace sexual violence, including: short-term absences from work; reduced productivity while at work, increased staff turnover for victims, perpetrators, and bystanders; and other costs including survivor health system usage and compensation.87 For instance, in 2018 in Australia, workplace sexual harassment was estimated to impose a $2.62-billion loss from lost productivity across the country. Other costs, including liability, health system, and additional investigation costs, sat at $936.5 million in the same time period.88 And in Canada, according to a 2017 federal Employment and Social Development report, 88% of survey respondents believed employers should be responsible for providing resources to employees who suffered workplace sexual violence.89

This indicates that, if external reporting is unavailable due to a lack of resources, employers should focus on ingraining technological approaches into their internal investigation systems. There is no reason this would provide a lower standard of workplace sexual violence response: instead, it would bolster employers’ efforts to better address the sexual violence epidemic costing them in productivity, internal trust, and funds.

Conclusion

This paper’s research and analysis reveal #MeToo has expanded Ontario’s workplace responses to sexual violence by holding employers to a higher standard in terms of their institutional reporting and investigation processes. After setting the stage contextually to situate Ontario workplace sexual violence response mechanisms prior to and after #MeToo’s spread, the literature review showed how norms and knowledge around different types of investigations and related resources have expanded to become more accessible and survivor-centred.

Although external reporting and investigation structures are preferable to those internal to organizations, whether internal or external, Ontario employers should deploy technological support in the form of applications and transparent, research-based procedure templates offering the qualified option of anonymous reporting in their support for workplace sexual violence survivors. While those mechanisms have become more available and survivor-focused in terms, accessibility concerns remain due to unequal resources across workplaces and sectors based on location and finances, along with a potential lack of diverse understanding of intersecting vulnerabilities (such as unique challenges faced by racialized survivors). This is why Ontario employers should strive to offer services predicated on confidentiality, security, and objectivity sensitive to their unique workplace dynamics.

Unfortunately, while this study clarified the extent to which Ontario workplaces have integrated #MeToo values into their sexual violence investigation practices in the wake of provincial legal reform, limitations remain. For example, researchers have not produced much Ontario-specific scholarship pertaining to #MeToo and legal reforms since the movement’s 2017 genesis. This makes the analysis and recommendations here somewhat subjective, lacking data-driven evidence. Further, different professional industries maintain different standards for reporting and investigation due to their differing norms and practices, so some recommendations or statements may not apply across the board to Ontario employers. It would be prudent to revisit this research mission in future once more jurisdiction-specific #MeToo-related academia is hopefully published.

Feminist scholar Catharine MacKinnon wrote, “The effect of law is not just when someone brings a case and someone goes to jail … The most important effect is that it changes the legitimacy of the act.”90 This statement is all the truer when applied to sexual violence in workplaces, where power dynamics and livelihood are shaped necessarily by identity and relational factors. Ontario’s 2016 OHSA reforms are a case study in exemplifying practicable challenges at the heart of the #MeToo movement’s philosophy. As studies continue to assess #MeToo’s impact on employer sexual violence response measures, it is essential to recognize that more transparent and resourced practices can only improve workplaces across Ontario moving forward.

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Endnotes

1 Joanne Rosa, “Alyssa Milano on sharing alleged sexual assault story 25 years later” (16 October 2019), online: ABC News.
2 Abby Ohlheiser, “The woman behind ‘Me Too’ knew the power of the phrase when she created it – 10 years ago” (19 October 2017), online: The Washington Post.
3 Laura G. Barron and Michelle Hebl, “The force of law: The effects of sexual orientation antidiscrimination legislation on interpersonal discrimination in employment” (2013) 19:2 Psychology, Public Policy, and Law 191-205 at 201.
4 Jeanne LeSage, “Reporting and Investigating Mechanisms for Workplace Harassment in the Arts” (2019) at 9, online (pdf): Cultural Human Resources Council.
5 Ibid.
6 Ibid.
7 While the paper considers research from across North America given #MeToo’s prevalence across the continent, recommendations will focus on Ontario due to the provincial nature of the legislation guiding Ontario workplaces’ sexual harassment policies.
8 In terms of language: the term “survivor” will be used to describe those who have experienced sexual violence unless otherwise indicated in the sources researched. “Sexual violence” is used to encompass those who have experienced sexual harassment, assault, or abuse of any type. “Women” refers to female-identifying individuals unless otherwise indicated in the sources researched. Notably, none of these terms are universal but are employed in this paper for conciseness and clarity.
9 Here, that standard is defined as a consistent and transparent survivor-centred workplace sexual violence response.
10 Ontario, Ministry of Labour, “Workplace Violence and Harassment: Understanding the Law” (Toronto: Queen’s Printer, 2016) at 4.
11 RSO. 1990, c. O.1 [OHSA].
12The History of the Occupational Health and Safety Act” (2017), online: Windsor Occupational Health Information Service.
13 Ontario Health and Safety Act, 2009, SO 2009, c. 23 [OHSA 2009].
14 Bill 132, “An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence, and related matters”, 1st Sess, 41st Leg, Ontario, 2015 (assented to 8 March 2016), SO 2016, c 2 [Bill 132].
15 OHSA at s. 1(1).
16 “Workplace Violence and Harassment: Understanding the Law”, supra at 8.
17 Ibid at 5.
18 OHSA at s. 32.0.1(1).
19 Ibid. at s. 32.0.5(2).
20 Ibid at s. 32.0.7(1)(a).
21 Ibid.
22 Ibid at s. 32.0.2(1).
23 OHSA 2009 at s. 32.0.6.
24 OHSA at 32.0.6(b).
25 Ibid at s. 32.0.6(d).
26 See below discussion of OHSA s. 32.07 on page 9 for more detail.
27 Ibid.
28 Ibid. at s. 32.07(1).
30 Ibid.
31 Ekant Veer et al, “I stood by: the role of allies in developing an inclusive and supportive academic environment post #MeToo” (2021) 37:1/2 Journal of Marketing Management 162-179 at 163.
32 Janice Rubin, “#MeToo at two: Has anything changed?” (4 November 2019), online: The Lawyer’s Daily.
33 OHSA at s. 32.07.
34 OHSA at s. 55.3(1).
35 Rubin, 2015, supra.
36 LeSage, supra at 15.
37 Ibid.
38 Mira S. Krivoshey et al, “Sexual Assault Reporting Procedures at Ohio Colleges” (2013) 61:3 Journal of American College Health 142-147 at 145.
39 Ibid.
40 Ibid.
41 Ibid.
42 Ibid.
43 LeSage, supra at 16.
44 Veer et al, supra at 169.
45 Rubin, 2019, supra.
46 Ibid.
47 LeSage, supra at 16.
48 Joan D. Hogarth et al, “#MeToo, Confidentiality, and the Conflict Resolution Field: Discussion on the Impact and the Future of the Practice” (2018) 36:7 “Alternatives to the High Cost of Litigation” 99-102 at 100.
49 “Workplace Violence and Harassment: Understanding the Law”, supra at 32.
50 Ibid.
51 Kirsten Scheurer Branigan et al, “Conducting Effective Independent Workplace Investigations in a Post-#MeToo Era” (2019) 74:1 DRJ 85-110 at 94.
52 LeSage, supra at 21.
53 Ibid.
54 Ibid.
55 Ksenia Keplinger et al, “Women at work: Changes in sexual harassment between September 2016 and September 2018” (2019) 14:7 PLoS ONE 1-20 at 2.
56 Ibid.
57 Heidi Liu, “When Whispers Enter the Cloud: Evaluating Technology to Prevent and Report Sexual Assault” (2018) 31:25 Harv. J.L. & Tech. 939-961 at 940.
58 Ibid at 952.
59 Ibid.
60 Jessica Ladd, “The reporting system that sexual assault survivors want” (TED Talks, 2016), online.
61 Liu, supra at 945.
63 Liu, supra at 950.
64 Erin O’Callaghan and Hannah M. Douglas, “#MeToo Online Disclosures: A Survivor-Informed Approach to Open Science Practices and Ethical Use of Social Media Data” (2021) 45:4 Psychology of Women Quarterly 505-525 at 508.
65 Liu, supra at 950.
66 S. Caroline Taylor and Leigh Gassner, “Stemming the flow: challenges for policing adult sexual assault with regard to attrition rates and under-reporting of sexual offences” (2010) 11:3 Police Practice and Research 240-255 at 248.
67 Liu, supra at 951.
68 Ibid.
69 Ibid.
70 Ibid at 957.
71 Ibid.
72 Ibid.
73 Ibid.
74 Adrija Dey, "’We are louder when we are heard together’: Sara Ahmed on “Complaint!” (2022) 37:1 Wasafiri 22-30 at 23.
75 Ibid at 25.
76 Ibid.
77 Ibid at 24.
78 Branigan et al, supra at 95.
79 Dey, supra at 29.
80 Veer et al, supra at 170.
81 LeSage, supra at 17.
82 Branigan et al, supra at 90.
83 Dey, supra at 27.
84 Kaitlynn Mendes et al, “#MeToo and the promise and pitfalls of challenging rape culture through digital feminist activism” (2018) 25:2 European Journal of Women’s Studies 236-246 at 237.
85 Liu, supra at 948.
86 Katharina Berndt Rasmussen and Nicolas Olsson Yaouzis, “#MeToo, Social Norms, and Sanctions” (2020) 28:3 The Journal of Political Philosophy 273-295 at 293.
87The economic costs of sexual harassment in the workplace” (2019) at 47, online (pdf): Deloitte Australia.
88 Ibid at 6.
89 Canada, Employment and Social Development, “Harassment and Sexual Violence in the Workplace Public Consultations” (Ottawa: Her Majesty the Queen, 2017) at 28.
90 Giti Chandra and Irma Erlingsdottir, “The Routledge Handbook of the Politics of the #MeToo Movement,” (London: Routledge, 2021) at 179.