In an anonymized decision, The Employee v. The University and another (No. 2), 2020 BCHRT 12, the British Columbia Human Rights Tribunal (BCHRT) decided that a comment a faculty member made to a university employee during a business trip did not rise to the level of sexual harassment as defined in the province’s Human Rights Code (Code). Dismissing the employee’s complaint, the Tribunal reasoned that not every comment of a sexual nature will violate the Code and the employee’s subjective feelings were not enough to prove that sexual harassment occurred; when considering whether a single comment could constitute a contravention of the Code, all circumstances need to be considered on an objective basis. The focus should be on the effect of the conduct on a complainant’s employment. The Tribunal determined that the faculty member’s conduct did not result in adverse consequences to the employee.   

Background

The employee worked at the university in a professional capacity and had two supervisors, one of which was the faculty member; she reported directly to her other supervisor and indirectly to the faculty member. The employee and the faculty member worked closely together and developed a positive working relationship. In the fifth month of the employee’s eight-month probationary period, an incident occurred when the employee and the faculty member were on a business trip. After a day of successful meetings and a celebratory dinner at which both consumed alcohol, the faculty member said words to this effect to the employee: “You will have to let me know if this is a misstep but I am crazy about you.”  After a period of silence, it became clear to the faculty member that the employee did not appreciate the comment, and he immediately apologized and did so repeatedly. They went back to the faculty member’s hotel room to discuss the incident, and the employee made it clear to the faculty member that she wanted only a professional relationship with him.

The employee and the faculty member continued to work together after the incident, and the employee successfully passed her probation. She reported the incident three weeks later to her other supervisor. On that same day, the employee met with this supervisor and the employee’s union representative and went on medical leave. The union filed a grievance and the university hired external investigators to investigate the employee’s allegations against the faculty member. The union held the grievance in abeyance pending the investigation. The investigation concluded that that the faculty member’s conduct did not amount to sexual harassment under the university’s Discrimination and Harassment Policy. Relying on the investigators’ report, the university denied the employee’s grievance.  The employee then made a human rights complaint alleging sexual harassment.

Decision of the Tribunal

In arriving at its decision to dismiss the employee’s sexual harassment complaint, the BCHRT applied the decision of the Supreme Court of Canada in Janzen v. Platy Enterprises, [1989] 1 SCR 1252, which sets out the legal test for sexual harassment.  

The Janzen Test

The legal test in Janzen provides that sexual harassment in the workplace may be defined as:

…unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas . . . and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.

The Tribunal noted that under Janzen the conduct at issue must (a) be of a sexual nature, (b) be unwelcome, and (c) result in adverse consequences for the complainant. Analyzing the faculty member’s conduct on that basis, the BCHRT first determined that contrary to the employee’s allegation that the faculty member’s comment was part of continuing conduct on his part to groom her into a sexual relationship, there was no evidence of predatory grooming. The Tribunal then proceeded to arrive at the following conclusions on each of the Janzen factors:  

1. Sexual nature

As the faculty member made a pass at the employee that failed, his conduct was of a sexual nature.

2.  Unwelcome

Overwhelming evidence supported a finding that the faculty member’s conduct was unwelcome, including, among other things, the faculty member’s own admission that his comment was very likely unwelcome.

3. Adverse consequences

The conduct must give rise to adverse consequences to the employee, which may include endangering continued employment, negatively affecting work performance, or undermining personal dignity. The employee’s subjective negative feelings cannot constitute “adverse impact” within the meaning of human rights law, nor are they enough to prove that sexual harassment occurred. The entire context of the situation and the following non-exhaustive list of five factors set out in Pardo v. School District No. 43, 2003 BCHRT 71, must be considered on an objective basis:

1. The egregiousness or virulence of the comment

The faculty member’s comment was not virulent or egregious. He did not proposition her to have sex, comment on her appearance, make a comment about sexual habits, or make any general comments about sex or gender. Nor was his comment a sexual innuendo, joke, or taunt. This factor weighed against a finding of discrimination

2. The nature of the relationship between the involved parties

There was a power imbalance between the faculty member and the employee flowing from their positions; the faculty member was a tenured professor and the employee was a probationary employee. This factor weighed in favour of discrimination.

3. The context in which the comment was made

The comment was made in the context of a successful work day after which the faculty member and employee went out for a celebratory dinner where they consumed more alcohol than they usually would. The faculty member was feeling the effects of the alcohol; he regretted making the comment and stated he would not have made it had he been thinking clearly; he never repeated the comment; he made numerous attempts to apologize for his mistake; and he did not attempt to minimize his conduct. The context in which the comment was made was a factor that weighed against a finding of discrimination.

4. Whether an apology was offered

The faculty member repeatedly and genuinely apologized to the employee, and some of the apologies reduced the harm caused by his comment. This factor weighed against a finding of discrimination.

5. Whether or not the recipient of the comment was a member of a group historically discriminated against

The employee was vulnerable: as a women she is a member of a group that has been historically subject to sexual harassment and discriminated against in the workplace; she was a probationary employee who did not have job security; and she received an unwelcome comment from a male supervisor who had the balance of power in his favour.  This factor weighed in favour of a finding of discrimination.  

After applying all of the Pardo factors to the case, and finding that three out of the five factors weighed against a finding of discrimination, the Tribunal concluded that the faculty member’s conduct did not pass the threshold of sexual harassment under the Code.

Bottom Line for Employers

The Employee v. The University indicates that not every comment of a sexual nature made to an employee in the workplace will reach the threshold of sexual harassment. When an employee alleges that sexual harassment occurred based on a single offensive comment, the employee’s subjective feelings will not be enough to prove that it occurred. An appropriate assessment will involve a consideration of all of the circumstances on an objective basis.

Factors that will tip the balance in favour of a finding that sexual harassment occurred may include, among other things: adverse consequences to the employee, such as the endangerment of their continued employment, a negative effect on their work performance, or the undermining of their personal dignity; the employee’s vulnerability (e.g., that they are a woman or a probationary employee; or that the person who made the comment had the balance of power).

Factors that will weigh against a finding of sexual harassment may include: the context in which the comment was made, including whether it was made after the consumption of alcohol; that the person who made the comment felt regret after making it; that the comment was made only once; repeated and genuine attempts to apologize for making the comment; and the absence of an attempt to minimize the comment by the person who made it.