In the recent decision The Employee v The University and another (No.2), 2020 BCHRT 12 the BC Human Rights Tribunal held that an isolated comment may not amount to sexual harassment where there are no objective adverse consequences and remedial steps are taken to mitigate the subjective harm felt by the complainant.
The complainant was a new employee at a BC university part-way through the probationary period. She and the respondent (a male faculty member) had a positive and collaborative working relationship, involving regular travel out of town together. After a celebratory dinner following a successful day of meetings on such a trip, the faculty member told her “You will have to tell me if this is a misstep, but I’m crazy about you”. The employee made it clear this comment was unwelcome and that evening the parties discussed it at length. The faculty member expressed regret and acknowledged it had been inappropriate. No further advances were made. Afterwards, the parties continued to work well together professionally, but the complainant felt deeply uncomfortable around the faculty member.
The central issue was whether the comment by the faculty member amounted to sexual harassment under s.13 of the Human Rights Code.
The legal test for sexual harassment is conduct that is of a sexual nature, unwelcome, and resulting in adverse consequences for the complainant. The comment in question was of a sexual nature and unwelcome, and the complainant was distressed as a result. The contentious issue was whether the subjective negative feelings of the employee constituted an “adverse impact” within the meaning of human rights law. The Tribunal found they did not.
The Tribunal assessed the circumstances surrounding the comment and found the comment was an isolated incident not accompanied by any other advances and was not vulgar or crude. Although there was a power imbalance in the relationship and inherent vulnerability, the dynamics were balanced somewhat by the parties` collaborative professional relationship. There was no abuse of power. The Tribunal accepted that the employee experienced emotional distress as a result of the comment but held that all circumstances must be considered on an objective basis. The Tribunal found there had been no adverse effect on their professional working relationship.
The Tribunal noted the complainant’s interpretation of events was coloured in hindsight and emphasised the “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”.
Ultimately the Tribunal found the comment and conduct of the faculty member did not amount to sexual harassment.
For employers, this decision provides an indication that objective considerations will be relevant, and not just subjective perceptions, in situations involving an isolated inappropriate comment in the workplace. The decision also indicates that appropriate efforts to address the inappropriate comment will be important.
This update was co-authored by Scott Marcinkow and summer student, Meg Monteith. Looking for more information regarding similar issues? Contact Scott at firstname.lastname@example.org or anyone else listed on the authors page.