B.C. university, faculty member cleared of sex discrimination

Background
Employers have an obligation to investigate sexual harassment claims, but it doesn’t mean the alleged harasser must be fired or severely disciplined. A lot can depend on the nature and severity of the misconduct – a single, isolated compliment followed by apologies usually isn’t considered severe.

A British Columbia worker who accused her superior of sexual harassment after he expressed affection has lost her human rights complaint.

The worker, who is in her 30s and whose identity remained private in the hearing, started working for a B.C. university in 2015, starting with a one-year probationary period. She reported to a university manager as well as a faculty member who had management responsibilities, although, in the day-to-day business, the faculty member was the worker’s primary supervisor.

The worker’s duties involved many meetings and often required travel out of town. In such circumstances, the worker and the faculty member usually stayed at the same hotel with some meetings in hotel rooms. They also usually ate meals together while going over strategy and reviewing the meetings — “some of the best strategic and debriefing sessions” happened during meals, according to the worker.

Many of the trips were to Vancouver and the worker stayed with family she had in the city at those times rather than at a hotel. As a result, they often had meetings in the faculty member’s hotel room. She felt a little uncomfortable about it, but she chalked it up to the faculty member not understanding “the optics” of it. The faculty member sometimes tried to convince the worker to stay in the hotel during the Vancouver trips — to which she was entitled for an out-of-town trip — but the worker always stayed with family.

The nature of the work required working well as a team and the worker developed a good working relationship with the faculty member. They became trusted colleagues and, although the faculty member was technically the worker’s superior, he tried to treat her equally and sought her thoughts and opinions about strategies. As they got to know each other, they often discussed shared interests.

In March 2016, the worker and the faculty member had a day of meetings in Vancouver. As usual, the faculty member booked a hotel room for that evening and the worker arranged to stay with family.  Because they went directly to the first meeting, the worker left her suitcase in the faculty member’s room until she went to her family’s place at the end of the day.

Over the course of the day, the faculty member felt positive about the meetings and was in a good mood. They had dinner after the last meeting to celebrate a successful day, where they shared some wine and liqueur. The faculty member was feeling the effects of the alcohol, but the worker hadn’t had as much and didn’t feel any intoxication.

During dinner, the worker commented that it had been a great day, to which the faculty member responded it had been “especially great because it was with you.” The worker thought he was flirting with her, but she let it pass.

Comment made worker uncomfortable
After dinner, they walked back to the hotel so the worker could retrieve her suitcase. On the way, the faculty member said to the worker, “You will have to let me know if this is a misstep, but I’m crazy about you.” After a long pause, the worker responded that she wasn’t interested in a romantic relationship with him.

The worker had to return to the faculty member’s hotel room to get her suitcase and they discussed what he had said for about one hour. The faculty member apologized and said his comment wasn’t appropriate. He told the worker he hoped “she would still smile” even if she had to withdraw from work to protect herself. This last comment made the worker angry, as she felt it implied she would just get over it when she was hurt and worried about how this would affect their professional relationship.

Between meetings the next day, the faculty member tried to talk more about what had happened, asked the worker about her personal life, but the worker felt anxious and uncomfortable. They travelled separately back to the university after the meetings were over.

The employee continued to feel uncomfortable around the faculty member and they didn’t see each other very often, although they continued to work productively and professionally as the worker put on a façade to hide how she was feeling. She told the union about it and the union advised her to wait until her probation was over before reporting it.

In May 2016, the worker completed her probation and became a full-time, regular employee of the university. About three weeks later on June 6, she and her employee association reported the faculty member’s comments on the March business trip to the university manager. The university manager asked if the worker was sure the faculty member was coming on to her and the worker responded that she was positive, mentioning that the faculty member had repeatedly apologized for his comment. The manager felt the union’s advice to wait on reporting it was wrong and it left the worker to deal with it herself for three months.

Shortly after reporting the comment, the worker began a medical leave. The union filed a grievance of sexual harassment and the worker requested a female investigator. The university hired an external male investigator and, when the worker protested, it added a female investigator to the team.

Investigation finds no sexual harassment
After a six-month investigation, they determined that the faculty member’s behaviour crossed “boundaries of propriety” and was “a breach of his responsibility to a staff member.” However, they determined the comment wasn’t sufficiently of a sexual nature to qualify as sexual harassment and it didn’t have direct job consequences for the worker, so there was no breach of the university’s sexual harassment policy or collective agreement provisions against sexual harassment.

The employee association withdrew the grievance, but the worker disagreed with the investigation findings. She filed a human rights complaint for sex discrimination, claiming she was adversely impacted by the faculty member’s conduct because it caused “feelings of helplessness, hopelessness, and disempowerment.” She argued that while the faculty member apologized, he didn’t recognize “what truly transpired” and the effect it had on her. She also felt the university condoned the faculty member’s behaviour, arguing that the comment was part of a pattern of conduct that were attempts to groom her into a sexual relationship.

The B.C. Human Rights Tribunal noted that the test for sexual harassment as set out by the Supreme Court of Canada had three elements: the conduct must be of a sexual nature, be unwelcome and result in adverse consequences for the subject of the harassment.

The tribunal found that the worker had a good relationship with the faculty member before the “crazy about you” comment and her perception of a pattern of behaviour grooming her was coloured by her mindset afterwards. There was no evidence the worker had any issues before the comment and she didn’t act like there were any problems. They had a “productive and professional working relationship,” which is why the comment was “all the more violating for her,” the tribunal said.

The faculty member acknowledged that the worker had come to mean a lot to him and the comment was a way of expressing his affection. He immediately acknowledged it was a mistake and never made a similar comment again. It was not a case of repeated verbal conduct but rather a single statement, said the tribunal.

However, the tribunal found the statement amounted to conduct of a sexual nature. It was an expression of the faculty member’s romantic interest that was essentially a pass at the employee that wasn’t reciprocated and led to awkward interactions afterward. In addition, because the worker didn’t feel the same way and it potentially interfered with their professional relationship, the comment was unwelcome — and the fact the faculty member prefaced it by saying it might be a “misstep” indicated he thought the worker might find it unwelcome.

The tribunal also found that while the comment was sexual in nature and unwelcome, it was not a proposition or vulgar. It was an expression of affection and was “virulent or egregious.” It also came while they were in a celebratory mood, in a public place, and when the faculty member may have been a little drunk. These factors, along with the fact that the faculty member “repeatedly and genuinely apologized,” reduced the harm caused by his comment.

As for an adverse impact on the worker, the tribunal pointed out that there was some power imbalance although the faculty member tried to keep them on the same level, both professionally and in his apologies for the comment, and the worker gained power and influence in their professional relationship as she became more involved in their projects over time. In addition, the university manager had ultimate control over the worker’s job, but the worker had reason to believe the faculty member had influence over the decision. This added an element of vulnerability, the tribunal said.

The tribunal then looked at the university’s investigation and found it was sufficient. The worker delayed reporting the incident, but once she did the university immediately looked into it. Although the worker had issues with the initial appointment of the male investigator, there was no evidence the investigation was faulty, the tribunal found.

The tribunal determined that since the comment wasn’t serious, it was an isolated incident, the faculty member apologized immediately and again afterwards, and the university immediately investigated upon learning of it, the worker was not a victim of sex discrimination. The worker’s complaint was dismissed.

For more information, see:
• The Employee v. The University and another (No. 2), 2020 BCHRT 12 (B.C. Human Rights Trib.).