No Sexual Harassment Where Co-Worker Apologized for Making a Pass and Employer Investigated: B.C. HRT

A recent decision of the B.C. Human Rights Tribunal offers insight on what conduct amounts to sexual harassment, and how an appropriate employer response can mitigate risk.

In The Employee v. The University and another (No. 2), the complainant was an employee of a university. She worked closely with a member of the Faculty (a middle-aged man). After a successful day of presentations, followed by dinner and drinks, the Faculty Member told the employee that he was "crazy about [her]". Though he immediately apologized for overstepping boundaries, and they later talked over what had occurred, the employee continued to feel violated and uncomfortable in the workplace. She maintained a professional demeanour in her interactions with the Faculty Member, but she was struggling with feelings of sadness, disappointment and fear that she would be dismissed, as she was still within her probationary period. Once she had completed her probation, her union recommended that she report the incident. Upon learning of what had occurred (approximately three months earlier), the university engaged an investigator to look into the employee's claims of sexual harassment. When the employee objected to the male investigator, a female investigator was added to the team. Ultimately, the investigators concluded that the conduct of the Faculty Member, although unwelcome, was not sexual harassment. The employee had previously grieved, but decided to withdraw her grievance in order to pursue a complaint to the Human Rights Tribunal. Despite efforts to resolve the complaint, the complainant maintained that there should be a hearing so that the Faculty Member and the university would be "held accountable".

After reviewing the case law, the Tribunal applied the test in Janzen v. Platy Enterprises, a 1989 decision of the Supreme Court of Canada, in which the Court observed:

Common to all of these descriptions of sexual harassment is the concept of using a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands.

[…]

Sexual harassment also encompasses situations in which sexual demands are foisted upon unwilling employees or in which employees must endure sexual groping, propositions, and inappropriate comments, but where no tangible economic rewards are attached to involvement in the behaviour.

[…]

The main point in allegations of sexual harassment is that unwelcome sexual conduct has invaded the workplace, irrespective of whether the consequences of the harassment included a denial of concrete employment rewards for refusing to participate in sexual activity.

[…]

Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets. (1281 to 1284)

In her complaint, the employee alleged that the "crazy about you" comment was part of a larger pattern of "predatory grooming", intended to coerce the employee into a sexual relationship with the Faculty Member. However, the Tribunal found that these other episodes were innocent, and had been misconstrued or recast by the complainant in hindsight, after she had formed the opinion that the Faculty Member was a predator. Looking at the incidents relied on by the complainant objectively, it was clear that they did not affect the good working relationship between the two employees. There was no evidence that the Faculty Member had "hand picked" her for the position, and there was nothing untoward in the prior business trips the two had taken together, despite her misgivings about meeting in hotel rooms, the amount of praised lavished on her for her work, or the Faculty Member asking her to pick the restaurant where they would meet. The Tribunal did not question the sincerity of the employee's concerns, but found that they were misplaced.

While the Faculty Member acknowledged a growing affection for the employee, leading up to the "crazy about you" comment, he also admitted that having done so was a mistake and immediately apologized. He never repeated any comment of this nature to the employee, nor did the employee experience any negative changes in her terms and conditions of employment for having objected to the remark. Though the employee did not accept his apologies, and viewed their subsequent interactions as "a violation of her boundaries", there was nothing in the evidence that she presented that showed the Faculty Member's behaviour was "predatory or sexual in nature" prior to the impugned comment.

The Tribunal accepted that a senior male employee telling a junior female employee that he was "crazy about [her]" was sexual in nature (as corroborated by the Faculty Member's admission that he had developed "feelings" for the employee), and that the pass made by the Faculty Member was unwelcome, as the Faculty Member knew or ought reasonably to have known that the employee would not appreciate the remark. In fact, in his evidence the Faculty Member acknowledged prefacing his comment, saying "you will have to let me know if this is a misstep", and recognized immediately that the employee was unhappy with what he had said.

However, on the issue of adverse consequences, the Tribunal was unable to find that the employee had suffered any negative impact from the incident (aside from her emotional response to the episode and damage to the professional relationship with the Faculty Member). Although the Tribunal accepted that a single incident could amount to sexual harassment, it also had to consider a number of factors:

a) the egregiousness or virulence of the comment;

b) the nature of the relationship between the involved parties;  

c) the context in which the comment was made;

d) whether an apology was offered; and

e) whether or not the recipient of the comment was a member of a group historically discriminated against

As the Tribunal commented, the subjective feelings of the complainant are not the sole determinant of whether a single incident amounts to 'harassment'. While there was no doubt that the emotional impact the employee described was heartfelt, those negative feelings were not, in and of themselves, an adverse impact as that term was used in the jurisprudence.

Looking at the other factors, the Tribunal held that it could not find "an example of a comment that is less egregious or virulent" than the Faculty Member's remark to the employee. There was no sexual proposition, nor did he comment on her appearance or her sexual habits. His comment was not gross, lewd or taunting, nor was there anything threatening or intimidating about what he said. In short, it was not a particularly egregious incident. Although there was a power imbalance between the employee and the Faculty Member, it was not as stark as presented by the employee. She reported to someone other than the Faculty Member (though they did work closely together), and her actual manager was the person responsible for determining whether the employee passed her probation. In fact, the employee's manager was responsible for making all employment-related decisions. Over time, the employee had also acquired more power in the relationship because of her ability to perform a needed role when there was time pressure to achieve program-related goals. Though not indispensable, her role was critical to the Faculty Member's success. In addition, their professional communications demonstrated that they discussed topics more like colleagues than two employees of different levels within the organization. That being said, there was an inequality of power, which weighed in favour of discrimination.

When one looked at the context in which the comment was made, however, it weighed heavily against the presence of an adverse impact. The two employees were celebrating a shared success, had gone to dinner and enjoyed drinks together. By all accounts, things were convivial up to the point of the comment. After making the remark, the Faculty Member immediately recognized that it was unwelcome and apologized. From that point forward, his actions were designed (and appeared objectively) to diffuse the situation and to put the employee at ease that this was merely an error of judgment. They had a lengthy discussion in the Faculty Member's hotel room, after which it appeared that the employee was somewhat relieved. Throughout there was no evidence of the Faculty Member trying to make physical contact or any sexual advances to the employee beyond the one comment, and the employee acknowledged that he seemed to be upset with himself during their conversation. In the view of the Tribunal, the actions of the Faculty Member did not constitute a sexual advance.

The Faculty Member's attempts to apologize to the complainant (though she viewed some of these attempts as a violation of boundaries) were sincere and commenced immediately after the remark. After a month in which relations between the two employees was strained, the employee testified that things improved after they "cleared the air", and they were better able to work together. To some degree, the employee also acknowledged that some of the Faculty Member's apologies did reduce the harm caused by his comment. This was a mitigating factor, in the Tribunal's view.

The Tribunal accepted that the complainant, a young woman, was a member of a vulnerable group, and that she perceived the Faculty Member as having influence over the outcome of her probation (although there was no evidence that the Faculty Member ever threatened her employment). By the same token, the Faculty Member never took any action that might have resulted in her termination, and provided her with consistently positive feedback on her work performance. Although the employee had a genuine fear for her job, based in part on advice she received from her union, this fear was not objectively reasonable as the Faculty Member did not have the authority to terminate her employment. At the same time, she did have reason to be concerned that the outcome of her probation could be affected by her relationship with the Faculty Member, and her vulnerability was a factor weighing in favour of an adverse impact.

Ultimately, the Tribunal concluded that the unwelcome conduct did not "rise to the level of harm that is protected under the [Human Rights] Code". The Tribunal went on to observe:

There is a large gap between a comment that is inappropriate, and deserving of an apology, and one that is inherently such an affront to the person’s dignity that it rises to the level of sexual harassment as defined by the Code. In this case, the Faculty Member’s comment was not egregious or virulent. It does not, on its own, communicate a message that the Employee is less worthy of respect or dignity because of her sex: ...[citation omitted]. The comment happened on only one occasion in the context of a celebratory dinner after a successful day of work. The Faculty Member has repeatedly and genuinely apologized for the comment. He has taken a number of remedial steps, some of which have reduced the harm that the Employee was experiencing. For the Employee, they did not go far enough to restore the trust that was broken. 

Moreover, there was no evidence that the Faculty Member had abused his authority. In fact, the evidence tended to establish that the Faculty Member had used his power to support the employee, both before and after the comment was made.

In the end, the complaint against the Faculty Member was dismissed as the evidence did not establish that sexual harassment had occurred. The Tribunal also rejected the complainant's attempt to recast the issue as one of sex discrimination, finding that it was presented as an incident of sexual harassment and the test for the specific type of discrimination alleged was still the appropriate means of assessing the complaint's validity.

With respect to her complaint against the university, the employee alleged both that the employer was vicariously liable for the sexual harassment committed by the Faculty Member, and that it had engaged in sex discrimination by not adequately addressing her complaint when she brought it forward. Given that the Faculty Member was found to not have discriminated against the employee, the university could not be held vicariously liable and that claim was dismissed.

Regarding the university's response to the complaint, the Tribunal first determined that it could consider the allegations despite the fact that the underlying complaint itself was found to not be substantiated. With respect to the timing of the investigation, the Tribunal found that the employer had no reason to believe that there was any problem between the two employees before the complainant came forward to her supervisor. Almost immediately, the employer allowed the employee to take stress leave (with sick benefits), reached out to the union to discuss the complainant's options, and engaged with her union representatives once a grievance was filed. The fact that the employer then dealt directly with the union on her complaint was a by-product of the unionized setting, and did not represent discrimination.

With respect to the conduct of the investigation, the complainant alleged that its scope was too narrow. However, the scope of the investigation reflected the employee's characterization of the issue ("workplace sexual harassment") in her grievance. The definitions in the university's policy reflected the jurisprudence on sexual harassment, and the investigators applied the policy in assessing the complaint. The employee also claimed that the process was flawed because she specifically requested a female investigator, but a sole male investigator was initially assigned (later augmented by a female investigator). However, none of the participants in the meeting between the union and employer could recall the complainant making this request, and it was not reflected in the union's notes of the meeting. When she did raise this concern, a female investigator was immediately appointed. While the Tribunal found that the male investigator did make two comments during the interview with the complainant that were insensitive, it concluded that there weren't any procedural flaws in the conduct of the investigation that would have deprived the employee of an opportunity to state her case. The investigation took six months to complete, something which the employee described as "traumatic". However, the Tribunal found that the university made clear and consistent efforts to support her through the process, and that any delays that were experienced were reasonable in the circumstances. Throughout the process the employer worked with the employee's union to ensure that she received all of the negotiated benefits available to her under the collective agreement. Moreover, the complainant had been responsible for some of the delay by not producing a formal complaint until more than two months after she first reported the incident.

In the result, the Tribunal concluded that the employer had behaved reasonably in responding to the complaint and had not discriminated in the manner that the investigation was conducted. The complaint was, therefore, dismissed.

The decision illustrates how employers can greatly mitigate their potential liability in the face of a harassment complaint. If and when you receive a complaint, ensure that you do the following:

• No matter what doubts you may have about the validity of the concerns, ensure that the employee is taken seriously and treated with compassion. Try to remain open-minded about the merits of the complaint.
• If necessary, engage with the employee's bargaining agent to assess the preferred approach to dealing with the complaint.
• If the complaint has not been formalized, attempt to get the complainant to reduce it to writing. Knowing the scope of the complaint will assist in ensuring that the investigation is properly scoped.
• Identify an investigator or retain a third-party, as appropriate, to conduct the investigation. Move as quickly as possible to locate the investigator, and ensure that the person selected has adequate availability to complete the investigation in a reasonable time frame.
• If the employee will be out of the workplace during the investigation, ensure that they are supported and receive any entitlements for which they qualify under their employment agreement, employer policies or the collective agreement (if applicable).
• Ensure that the investigator affords the complainant and respondent adequate opportunities to state their cases. If either party raises procedural or fairness concerns, address them promptly, ensuring equal and consistent treatment for both parties.
• If the investigation takes longer than expected, provide regular updates to the parties so that they don't become concerned that the process has derailed. Ensure the investigator or investigation team promptly drafts the report and that the parties are informed of the outcome appropriately (an issue which is usually dictated by the terms of the policy under which the complaint was brought).
• Take corrective action promptly, if required, and ensure any other follow-ups are completed in a timely fashion (e.g., apologies, additional training, etc.)

By acting reasonably, an employer can avoid claims that they were a participant in any harassing or discriminatory behaviour, even if the underlying complaint has some validity. Of course, nothing will totally preempt liability, and solid policy, training and supervision are the true keys to preventing these sorts of incidents. But if things go wrong, and a complaint does come in, understanding the employer's obligations is critical in avoiding additional exposure.

Need guidance on a claim of workplace harassment or discrimination? Looking for a workplace investigator to conduct an inquiry into a complaint? Ceaser Work Counsel does that. Contact [email protected] for expert assistance.

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Operating as Ceaser Work Counsel since early 2014, Lance Ceaser is a 15+ year management-side labour and employment lawyer operating from London, Ontario, where he resides with his lovely spouse, a dog and 2 cats. Lance has provided timely, cost-effective advice to organizations of all sizes in virtually every sector of industry and the public sector throughout his career.