Some of the more difficult cases of sexual harassment that we deal with as workplace investigators are what we call “borderline” cases — where the behaviour at issue straddles that line somewhere between unwelcome and simply misguided. What types of conduct in the workplace are serious enough to qualify as sexual harassment? A recent decision of the British Columbia Human Rights Tribunal, Prosko v. The District of Taylor and another,¹ highlights some of the challenges these types of cases present.

In Prosko, the complainant, Ms. Prosko, an employee of the District of Taylor, alleged that she was sexually harassed by her colleague, Mr. Nelson, and that the District did not properly respond to his conduct.² Her sexual harassment allegations stemmed from Mr. Nelson’s comments on two occasions: the “cougar” comment and the “contraceptives” comment.

During a meeting in September 2017, an attendee mentioned that a wild cougar had been seen in the area. Mr. Nelson stated that a cougar had been sighted at the “Hub,” which was the name of the building where Ms. Prosko worked. Mr. Nelson admitted to the behaviour and described it as an attempt at humour. The Tribunal took judicial notice of the fact that the term “cougar” refers to a middle-aged woman who dates significantly younger men. A few months later, Ms. Prosko informed both her supervisor and the District’s Corporate Officer that the comment had upset her; however, she did not request an investigation. Ms. Prosko’s supervisor spoke with Mr. Nelson about his comment and he later apologized to Ms. Prosko for it.

With respect to the “contraceptives” comment, at a meeting in January 2018 attended by both Mr. Nelson and Ms. Prosko, there was a discussion about how some members of the District’s Council did not know what the term “contraceptives” meant. The comment resulted in some joking amongst those at the meeting, and Mr. Nelson asked Ms. Prosko if she knew what a contraceptive was. Ms. Prosko did not respond to the comment, nor did she did complain about it to her employer prior to her human rights application.

In its decision, the Tribunal considered whether Ms. Prosko’s complaint of sexual harassment had a reasonable prospect of success. The Tribunal held that Mr. Nelson’s comments were “attempts at humour, albeit in poor taste,” and that the comments “constituted undesirable, inappropriate behaviour.” In considering whether the comments amounted to a violation of the B.C. Human Rights Code, the Tribunal considered the following factors: the egregiousness 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.

The Tribunal found that the cougar comment amounted to sexual harassment. The Tribunal accepted that the conduct was unwelcome, given that it occurred during a senior management meeting in front of Ms. Prosko’s peers, and found that it made negative assumptions about Ms. Prosko’s sexual behaviour. The Tribunal nonetheless held that because Ms. Prosko had waited a significant period of time before raising her concern about the comment, indicated that she did not wish for it to be investigated, and Mr. Nelson subsequently apologized to her, the incident “[did] not warrant the use of the Tribunal’s scarce resources.”

The Tribunal did not find that the contraceptives comment amounted to sexual harassment. They felt that there was no link between the comment and Ms. Prosko’s gender, that it was an attempt at humour, and made in the context of other jokes being made at the meeting. The Tribunal also cited the fact that Ms. Prosko had not objected to the comment at any time prior to her human rights application.

The Tribunal ultimately held that taken together, the two comments did not rise to the level of sexual harassment that amounted to discrimination under the Code, and therefore they had no reasonable prospect of success.

Interestingly, the Tribunal held that Ms. Prosko’s complaint that her employer failed to adequately respond to her complaints did have a reasonable prospect of success. The Tribunal confirmed an employer’s obligation under the Code to investigate an allegation of sexual harassment and address it with the individual, if the incident was found to have occurred. The employer failed to file any evidence of what was discussed between Ms. Prosko’s supervisor and Mr. Nelson with respect to the cougar comment, and as such, the Tribunal determined that this allegation could proceed to a hearing.

So, did the Tribunal get it right here? This decision highlights how difficult these types of “borderline” cases can be to assess. We can imagine a world in which the analysis of the behaviour went the other way, especially considering the Tribunal’s finding that the “cougar” comment did in fact amount to sexual harassment. The Tribunal’s preoccupation with when, and if, Ms. Prosko objected to the behaviour is also notable, given the case law cited in the decision that “it is not necessary for a complainant to expressly object to the conduct and the law recognizes that a person’s behaviour ‘may be tolerated and yet unwelcome at the same time.’”³ Lastly, the Tribunal relied on Mr. Nelson’s “attempts at humour” and a joking environment to dismiss the contraceptives comment. A closer examination of the nature of the relationship between these two employees (it is not clear from the decision whether there was any power differential between them, or why Mr. Nelson targeted Ms. Prosko with his question regarding contraceptives), as well as the broader context of the previous cougar comment may have led to a different finding in this regard.

Ultimately, these types of borderline cases require a careful consideration of a host of factors to assess whether a reasonable person would have recognized the conduct as unwelcome. These factors can include the context of the comment or conduct; the relationship between the parties and whether any power differential is at play; the number of incidents at issue; and whether any objections to the conduct were raised (including non-verbal ones) and, if not, whether an explanation for this was provided by the complainant.