Canadian Employment Law Today

Canadian HR Reporter, 2020 4 B.C. university, faculty member cleared of sex discrimination Faculty member's expression of affection made employee uncomfortable and fearful for her job BY JEFFREY R. SMITH A British Columbia worker who ac- cused her superior of sexual harass- ment 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 meet- ings and often required travel out of town. In such circumstances, the worker and the fac- ulty member usually stayed at the same ho- tel 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 ses- sions" 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 fac- ulty member's hotel room. She felt a little un- comfortable 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 ho- tel 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 techni- cally the worker's superior, he tried to treat her equally and sought her thoughts and opin- ions 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 ho- tel room for that evening and the worker ar- ranged 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 "es- pecially 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 wor- ried about how this would affect their profes- sional relationship. Between meetings the next day, the fac- ulty 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 uncom- fortable around the faculty member and they didn't see each other very often, although they continued to work productively and profes- sionally 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, regu- lar 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 mem- ber was coming on to her and the worker responded that she was positive, mention- ing 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 fe- male investigator to the team. Investigation finds no sexual harassment After a six-month investigation, they deter- mined that the faculty member's behaviour crossed "boundaries of propriety" and was "a breach of his responsibility to a staff mem- ber." However, they determined the comment wasn't sufficiently of a sexual nature to qualify as sexual harassment and it didn't have direct CASE IN POINT: SEXUAL HARASSMENT The university determined that the faculty member's behaviour crossed 'boundaries of propriety' but wasn't harassment. 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. BACKGROUND

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