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Investigating Complex Cases
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
“This complaint captures the heart of the #MeToo movement for the complainant.”
Despite this opening sentence in her decision, Tribunal Chair Juricevic found that the complainant’s allegations of sexual harassment and discrimination were not substantiated.
As a workplace investigator, I am sensitive to the fact that conversations around #MeToo in the workplace have been an evolution; people are not always sure about “where the line is” when assessing whether conduct in the workplace amounts to sexual harassment. The British Columbia Human Rights Tribunal recently chimed into this discussion. The decision¹ provides a detailed refresher on the legal test for claims of sexual harassment and draws a line in the sand regarding what is (or is not) considered sexual harassment.
This case involved an employee (the “Employee”) and a faculty member (the “Faculty Member”) at a university in British Columbia (the “University”). The Employee was newly hired at the University and she reported directly to the Faculty Member, as well as a senior officer at the University. The Employee worked alongside the Faculty Member, providing strategic support and assistance to the Faculty Member on several of his projects. By all accounts, the Employee excelled in her position, and the Employee and Faculty Member had a great working relationship.
The nature of the Faculty Member’s projects often required the Faculty Member and Employee to travel out of town and March 3, 2016, was one such occasion. The pair travelled together to Vancouver for a day of meetings, which went exceptionally well. Later that evening, the Employee and Faculty Member enjoyed a three-hour celebratory dinner at a local Vancouver restaurant. Following dinner, about half way through the walk back to the Faculty Member’s hotel, the Faculty Member said to the Employee, “You will have to let me know if this is a misstep, but I am crazy about you.” The Employee responded to the Faculty Member that he was married, he was her boss and that she would never think of him that way.
The two relocated to the Faculty Member’s hotel room (the Employee did not feel threatened) where they discussed the incident in detail and the Faculty Member apologized for his conduct. They ended the night by sharing an awkward hug, which neither party interpreted as romantic.
As the Employee and Faculty Member continued their working relationship, the Faculty Member repeatedly apologized for his comment. On June 6, 2016, the Employee reported the “crazy about you” comment to the University and her union subsequently filed a grievance on her behalf.
Claim of Sexual Harassment and Discrimination
In response to the grievance, the University conducted an investigation using an external investigator. The investigation determined that the Faculty Member’s conduct did not amount to sexual harassment under the University’s policy, as such the grievance was denied. The Employee proceeded to file a human rights complaint, alleging sexual harassment, which is a form of sex discrimination.
Sexual Harassment: The Legal Test
Tribunal Chair Juricevic confirmed that the legal test for sexual harassment was broadly 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 harassment. She further confirmed the following three elements of the test, stating that the conduct must:
1. Be of a sexual nature;
2. Be unwelcome; and,
3. Result in adverse consequences for the complainant. ²
Although the Employee tried to raise several incidents that occurred in the past to support her position that the Faculty member was a sexual predator, the Tribunal determined that these allegations came from “hindsight” and that, taken together, the objective evidence showed that the Employee and Faculty Member had a productive and professional working relationship.
The conduct at issue in this claim was the comment, “You will have to let me know if this is a misstep, but I am crazy about you.” It was accepted that the comment was both sexual in nature and unwelcome. This case, therefore, turned on the third prong of the Janzen test: Did the conduct give rise to adverse consequences for the complainant. To make this determination, the Tribunal relied on the factors as set out in Pardo v. School District No. 43 ³:
1. The egregiousness or virulence of the comment
2. The nature of the relationship between the involved parties
3. The context in which the comment was made
4. Whether an apology was offered
5. Whether or not the recipient of the comment was a member of a group historically discriminated against
Pardo Factors in Action
The Tribunal ultimately decided that only two of the five factors listed in Pardo weighed in favour of a finding of discrimination. The comment, “You will have to let me know if this is a misstep, but I am crazy about you” was found not to be egregious or virulent. On the contrary, the Tribunal Chair stated that she was “unaware of any case law on sexual harassment that gives an example of conduct that is less egregious or virulent than the Faculty Member’s comment to the Employee.” The third factor, the context in which the comment was made, was also found to weigh against a finding of discrimination. The comment was made after a successful workday, following a celebratory dinner and on a busy street. The comment was never repeated and there was no evidence that the Faculty Member made any sexual advances toward the Employee.
The nature of the relationship between the Faculty Member and the Employee (i.e. that the Faculty Member was in a position of power as the Employee’s supervisor), as well as the fact that women have historically been subject to sexual harassment in the workplace, both weighed in favour of a finding of discrimination. In making this finding, the Tribunal did note, however, that the Employee gained power over time and that the Employee and the Faculty Member corresponded in a manner that reflected a genuine appreciation and respect for each other’s views. It was found that, at no time, did the Faculty Member engage in an abuse of his power.
“Mistake” verses Sexual Harassment
Throughout this very detailed decision, the Tribunal repeatedly confirmed that subjective feelings are relevant, but they are not determinative; circumstances and the context of a situation must be viewed on an objective basis. The comment by the Faculty Member was found not to pass the threshold of sexual harassment under the Human Rights Code 4 in British Columbia. The Faculty Member did not abuse his power. It was a normal work environment, before and after the comment. The Tribunal confirmed that the adverse impact experienced by the Employee resulted from a “mistake” and not sexual harassment.
Other Considerations for Employers
The Employee had also raised a claim of discrimation against the University regarding the manner in which the University handled the investigation of her complaint. For employers, it is important to note that the Tribunal confirmed that liability can attach to an employer even in the absence of a finding of discrimination. This means that a poor investigation in response to a complaint can, on its own, amount to discrimination regardless of whether the underlying conduct subject to the investigation is found to be discriminatory.
As my colleague, Janela Jovellano, wrote about in her blog, Feelings are Not Evidence, it is important to remember that the circumstances and the context of a situation must be viewed on an objective basis. There is a threshold that conduct must pass in order to be considered sexual harassment. Although there is no “bright line” in assessing whether conduct is (or is not) sexual harassment, the factors outlined in Pardo continue to provide a practical framework for employers.
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¹ The Employee and The University and another (No.2 ) 2020BCHRT 12 (CanLii). This decision was subject to an anonymization order and publication ban.
² Janzen v. Platy Enterprises 1 SCR 1252
³ Pardo v. School District No. 43, 2003 BCHRT 71 (“Pardo”)
4 Human Rights Code [RSBC] 1996] Chapter 10.