Labour and Employment Law Blog

A recent decision of the British Columbia Human Rights Tribunal (the “Tribunal”) held that a professor telling a subordinate employee (the “Complainant”) that “you will have to let me know if this is a misstep but I am crazy about you” (the “Comment”) did not constitute sexual harassment pursuant to the B.C. Human Rights Code.

Background Facts

The Complainant and professor worked closely together, often travelling out of town on business and conducting meetings in the professor’s hotel room. The “crazy about you” comment was made following a work dinner where alcohol was consumed. The Complainant told the professor that he was her boss, married and that she did not think of him that way. The professor was immediately apologetic. The Complainant went to the professor’s hotel room to retrieve her bag and they talked for over an hour with the professor repeatedly apologizing. The professor and Complainant worked together for three more months. Once the Complainant passed her probationary period, she made a formal complaint to the University and went on medical leave. The faculty association filed a grievance and the University conducted an investigation. The investigator found that the Comment did not constitute sexual harassment. As a result of the investigation findings, the faculty association withdrew its grievance and the Complainant commenced a human rights complaint against the University and the professor.

Legal Analysis

In reaching her decision, the Chair of the Tribunal engaged in a thorough analysis of the test for sexual harassment set by the Supreme Court of Canada in Janzen v. Platy Enterprises [1989] 1 SCR 1252 (“Janzen”). The three elements of the Janzen test are that the conduct at issue must:

• be of a sexual nature;
• be unwelcome; and
• result in adverse consequences for the complainant.

The Tribunal found that the Comment met the first two requirements as it was of a sexual nature and unwelcome. The Tribunal held that the following three “myths and stereotypes” must not be considered when analyzing whether alleged sexual harassment is welcome: (i) lack of protest; (ii) delay in reporting; and (iii) participation in prior behaviour. As a result, the fact that the professor and Complainant continued to work together productively for three months before the Complainant reported the allegation did not impact the analysis.

The non-exhaustive list of factors to be considered under the Janzen test when determining if alleged conduct has an adverse consequence on the complainant are:

• the egregiousness or virulence of the comment;
• the nature of the relationship between the involved parties;
• the context in which the comment was made;
• whether an apology was offered; and
• whether or not the recipient of the comment was a member of a group historically discriminated against.

Despite the power imbalance between the parties and the historic workplace discrimination against subordinate women favoring a finding of an adverse consequence, the Tribunal concluded that there was no adverse consequence given that this was an isolated comment that was not a sexual advance, vulgar or derogatory, the professor immediately apologized, and the Comment was only one comment made in a public space after a long work day.

Interestingly, in August 2018 the University offered to settle the complaint for over $70,000. The Complainant refused the settlement. At that time, the University applied to the Tribunal to have the complaint dismissed on the basis that the Complainant refused a reasonable settlement offer (2018 BCHRT 290). The Tribunal held that the settlement offer was not good enough to warrant dismissal of the Complainant’s complaint. Key problems with the settlement were: (i) the University had not taken steps to address the investigator’s findings that the professor’s comments, while not sexual harassment, did cross boundaries and were not appropriate. In particular, there was no discipline for the professor or clarification of expectations for senior faculty members; and (ii) the University’s release was too broad as it contemplated a “full and final settlement of my affairs with the university” which went beyond the Complainant’s human rights complaint.

While the University was ultimately successful and will not be required to pay any damages to the Complainant, the legal fees incurred for a 13 day hearing likely far exceed the $70,000 settlement offer. A “crazy” unfortunate result for both parties.