AN ISOLATED SEXUAL, INAPPROPRIATE COMMENT TO ME IN THE WORKPLACE. IS IT SEXUAL HARASSMENT? WHAT IS THE TEST? WHEN SHOULD I COMPLAIN?

You and a few co-workers are out to dinner after a lengthy work week.

During the event, your co-worker, who is also more senior than you and managerial, quietly says to you:

“You will have to tell me if this is a misstep, but I’m crazy about you”.

You tell your co-worker this comment is unwelcome and you discuss it briefly.

Your co-worker acknowledges it was inappropriate and expresses regret about making it to you.

Your co-worker makes no further advance and you and your co-worker continue to have a professional relationship, but you remain uncomfortable due to the initial comment.

Is it sexual harassment, contrary to Ontario’s 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.

Clearly the comment to you was sexual in nature and unwelcome and, consequently, you were both distressed and uncomfortable.

The real issue is whether the subjective, negative feelings you experienced constitute an “adverse impact” on you or your employ within the meaning of human rights law.

In this case, which actually happened, the comment was not considered sexual harassment.

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”.

What does this mean?

The circumstances, objectively, will be considered. Not only will the subjective interpretation and interpretation of the recipient be properly reviewed, but all of the circumstances, viewed objectively, will also be considered, particularly where there is a single, isolated incident in the workplace.

In this case, those did not warrant a finding of sexual harassment.

The decision also indicates that appropriate efforts to address the inappropriate comment will be important.

The case:

The Employee v. The University and another (No.2), 2020 BCHRT 12


Thank you for reading this - Jason Ward, Calvin Chan of WARDS LAWYERS PC.

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This WARDS LAWYERS PC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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