Canadian Employment Law Today

Canadian HR Reporter, 2020 April 22, 2020 | Canadian Employment Law Today job consequences for the worker, so there was no breach of the university's sexual harass- ment policy or collective agreement provi- sions 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 recog- nize "what truly transpired" and the effect it had on her. She also felt the university con- doned the faculty member's behaviour, argu- ing 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 un- welcome 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 be- fore the "crazy about you" comment and her perception of a pattern of behaviour groom- ing her was coloured by her mindset after- wards. 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 rela- tionship," 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 employ- ee that wasn't reciprocated and led to awkward interactions afterward. In addition, because the worker didn't feel the same way and it poten- tially interfered with their professional relation- ship, 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 com- ment 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 genuine- ly 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 mem- ber 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 tribu- nal said. The tribunal then looked at the universi- ty'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 in- vestigator, there was no evidence the investiga- tion 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.). ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com, or visit www.employmentlawtoday.com for more information. CREDIT: ROSSHELEN ISTOCK

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