So, your boss said, ‘I am crazy about you.’ That’s not sexual harassment, tribunal rules
Howard Levitt finds doctrine of ‘always believe female victims’ may not apply
Are legal brakes being applied to the #Metoo movement?
In a recent ruling, the British Columbia Human Rights Tribunal confirmed that not every expression of affection by an employer towards an employee gives rise to liability. Equally important and particularly noteworthy, it did not confer automatic credibility to the complainant merely because she made the allegations. The doctrine of “always believe female victims” was pushed to the side by a forum historically sympathetic to that view.
The tribunal went one step further by anonymizing the names of the parties to the complaint so as not to damage the accused male’s credibility before he was even judged. As a result, I will refer obliquely to them.
Hired as an eight-month probationary employee by the university, the complainant was assigned to work with a faculty member, with whom she developed an excellent rapport. Relying on her strategic support during significant professional challenges that year, she became his trusted adviser.
The employee’s position involved frequent out-of-town travel with this faculty member.
On one occasion, they travelled together from Victoria to Vancouver, attending a series of successful meetings, leading to a shared feeling of elation. Repairing to a restaurant, they enjoyed wine and liqueur with their dinner. During one exchange, the faculty member revelled in their success, which he credited to her, with the words, “it was great because of you.”
At the conclusion of the meal, as they walked back, the faculty member commented to the effect that, “you will have to let me know if this is a misstep, but I am crazy about you.”
After a long pause, the employee apologized for not saying anything. She pointed out that the faculty member was her boss, married, and that she would never think of him in any romantic way. The faculty member responded by apologizing and repeatedly seeking her forgiveness for having made the comment. He stressed that he only wanted to maintain a professional relationship.
After heading to his hotel room, the faculty member and employee spoke for over an hour. The faculty member made no advances and again acknowledged that his comment had stepped over the line, was inappropriate, and that he had no romantic interest in her. At the end of their session, they awkwardly hugged.
When the employee left the hotel, she immediately texted her friend that her boss had unexpectedly informed her that he was crazy about her romantically; that she didn’t feel the same way but felt a lot of respect for, and trust in, him; and that he was a good person who misunderstood what was going on between them and that she felt good about the relationship going forward.
The faculty member and the complainant continued to work together collegially and without incident for several more months until the complainant passed probation. She then filed a formal complaint with the university about the comment, and her faculty association lodged a grievance of sexual harassment on her behalf.
The university responded by initiating an outside investigation, ultimately determining that the faculty member’s comment did not amount to sexual harassment. After withdrawing her grievance, the complainant turned to the B.C. Human Rights Tribunal, filing a complaint against both the university and the faculty member.
At the hearing, the complainant testified that the faculty member’s comment was evidence of his grooming her for a sexual relationship and that he was a predator.
The chair of the tribunal,
Diana Juricevic, disagreed. She found that the faculty member’s comment did not meet the threshold of sexual harassment: that conduct must be of a sexual nature, unwelcome, and result in adverse consequences for the complainant.
While the chair concluded that the faculty member’s comment was sexual and was unwelcome, the allegations did not meet the third part of the test that adverse consequences flow. The comment was on the lower end of the spectrum; the relationship between the parties after the incident continued to be amicable and respectful; she passed her probation period; the faculty member was consistently and immediately contrite; the remark was isolated and made in the context of a dinner following a long day in a public space after alcohol had been consumed.
All of those factors outweighed the consideration of the historic power imbalance in the workplace between male superiors and female subordinates. Because the complainant could not show that she had experienced adverse consequences as a result of the faculty member’s comment, the complaint was dismissed.
The message of this case offers small comfort to employers.
While it is clear that not every comment rises to the level of sexual harassment, nor will a tribunal necessarily find that these remarks generate liability, it does speak to reputational and financial cost that must be borne by employers in dealing with these complaints.
In light of the challenging legal landscape, my recommendations to employers include taking the following measures:
Institute a policy: Ensure that
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your staff understand what behaviour is considered acceptable and what behaviour is not.
Train managers and supervisors:
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Employees who wield authority must draw the line between their personal lives and the workplace. Tribunals will assume an imbalance of power between a manager and their subordinate, particularly if the superior is male and the direct report is female.
Set out the investigation procedure:
■ Employees should be aware of the internal remedies that are accessible to them to seek redress for sexual harassment. This legal requirement will mitigate the damages that an aggrieved employee might otherwise seek.
Investigate promptly: A prompt
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investigation will more accurately capture the recollection of the parties and the witnesses. In this case, because of the complainant’s delay in filing a complaint, the recall of witnesses was affected.
Hold your ground: To the extent
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that an employee is misusing the legitimate complaint process of a human rights tribunal, an employer would be well-advised to consider holding the line and not surrendering to inordinate demands.
The B.C. tribunal has sent a message that not every complaint will be valid merely because the alleged victim says that it is so.
Financial Post
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the
Law of Dismissal in Canada.