Volume I, Issue 2

February 2005

 Queen's Human Rights Bulletin

Sexual Harassment

The Dupuis Case

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What is the appropriate discipline for professors who sexually harass, or have undisclosed dual relationships with, students ?

Facts:

In 1989, Linda Dupuis applied for a U.B.C. graduate program in zoology. A professor with whom she wished to study, encouraged her to obtain field experience. He set her up with a research position with the Canadian Wildlife Service studying birds in the Queen Charlotte Islands. Dale Seip, a wildlife biologist with the Ministry of forests and an adjunct professor at U.B.C., was one of her supervisors. On their six-hour drive from Vancouver to the Queen Charlotte Islands, Seip and Dupuis engaged in appropriate social conversation. They had to stay in a hotel one night in order to catch the ferry the next morning. Seip made a single room reservation at the hotel. Although there were two beds in the room, Seip invited Dupuis to sit on his bed to watch t.v. after she complained that she could not see the television without her contacts. He initiated sexual contact to which Dupuis responded in kind.  When he started to remove her clothing she stopped him, told him that she found him attractive but insisted that she did not make love to strangers. She fell asleep next to him on the bed. In the middle of the night, Seip made another advance and the couple made love.  The next day on the ferry, witnesses testified that they saw Dupuis flinch when Seip put his arm around her. Although they had sex several times in the Queen Charlotte Islands, their working relationship deteriorated quickly. Dupuis, who was often tearful, had several emotional outbursts in which she yelled at Seip. In the fall of 1990, she filed a complaint of sexual harassment with the B.C. Council of Human Rights, who rejected the respondent's claim that the relationship was consensual. The respondent was ordered to pay Dupuis $5000 as compensation for emotional suffering;  $14, 976 as compensation for lost wages. Seip was ordered to cease the contravention and [to] refrain from committing the same or a similar contravention. In addition, the council ordered the Ministry to search its personnel files and remove any evaluation of Dupuis done by Seip.  (Dupuis v. British Columbia (Ministry of Forests) (1993) B.C.C.H.R.D. No.43 (1993)).

Legal Questions

1. Was the relationship consensual  at first ?

2. Did the relationship become non-consensual ?

3. Was this act of sexual harassment at the high end of the spectrum?

B.C. Council of Human Rights Ruling

1. Yes

2. Yes

3. Yes

B.C. Council of Human Rights Reasoning

1. Up until the point where Dupuis told her supervisor and future thesis director that she did not have sex with strangers, the Council found that their sexual relationship was consensual.  When she sat on his bed (when she could have simply put in her contacts), responded to his kisses and caresses and told him that she found him attractive, it would be reasonable for him to believe that she was consenting to his advances. 

2. However, Dupuis created a clear boundary when she stopped him from undressing her and told him that she did not want to make love to a stranger. The Council found that a reasonable person should have known, by this action and this statement, that Dupuis was uncomfortable with the idea of making love to him.  When he made another advance, in the middle of the night, he was committing an act of sexual harassment. In the days and weeks following the affair, Dupuis' behaviour was a clear and cogent sign that the relationship was coerced, not welcomed.

3. This illegal act was at the "higher end of the spectrum in sexual harassment"  because of the factors used to assess damages:  1) the nature of the harassment [...]; 2)  the degree of aggressiveness and physical contact in the harassment; 3) [...] the time period of the harassment; 4) the frequency of the harassment; 5) the age of the victim; 6) the vulnerability of the victim; and 7) the psychological impact of the harassment upon the victim. ( (Dupuis v. British Columbia, paragraph 101)

Comment:

Even if the relationship had been consensual, and even if the two parties were genuinely enamoured with one another, the relationship would have been viewed as inappropriate if the professor continued to teach, direct, supervise and evaluate the student.

1) What is sexual harassment?             

5 2 In the Bell case (1980), an Ontario Board of Inquiry determined that a restaurant manager had not sexually harassed two female employees. The Chairperson of the Board provided a useful definition of sexual harassment and underscored that sexual harassment was a form of sex discrimination. This case, whose principles were upheld by the Supreme Court of Canada in the Janzen case (1989), constitutes the foundation for sexual harassment law in Canada. 

2) Is the employer liable for sexual harassment committed by its supervisory personnel?

5 6 In the Robichaud case (1987), the Supreme Court of Canada ruled that the Department of National Defense was vicariously liable for the act of sexual harassment committed by a member of its supervisory personnel. The male supervisor had coerced a female employee into having a sexual relationship with him.

3) How do the rules of natural justice apply to sexual harassment investigations? 

5 10 In the Racky case (2003), an arbitrator overturned the Canada Post Corporation's ruling that a supervisor had not sexually harassed an employee. The arbitrator found that the internal investigator had neglected to provide the complainant with the opportunity to respond to adverse comments made by witnesses; to evaluate contradictions in testimony; and to consider facts positive to the complainant.

4) What is considered appropriate discipline for professors who sexually harass their students or who have "dual relationships" with them?

5 24 In the Dutton (2001), Dupuis (1993) and Brandon (1993) cases, three professors were disciplined for having sexually harassed their students. Dutton conducted professional meetings in a sexualized setting; 2) Dupuis made unwelcome sexual advances; and Brandon made a series of inappropriate sexual comments. In Okanagan (1997) and Memorial (1997, two professors were penalized for having engaged in "dual relationships" with their students. It was found that the dual relationships, although not sexual harassment, were ethically inappropriate and should have been disclosed to appropriate authorities. 

5) How should Universities intervene when students sexually harass other students?

5 15 In B and W et al (1993) , an Ontario High Court of Justice supported a university's decision to expel a male law student. The student had claimed that the university had no right to make academic decisions based on his non-academic conduct. He also argued that the university had not respected the rules of natural justice when it denied him the right to cross-examine the witness. The Court ruled that when testimony is without contradiction, as it was in this case, cross-examination is unnecessary. 

6) Under U.K. human rights law, does sexual harassment amount to sex discrimination as it does in Canada?  

5 28 In Porcelli (1993), an Employment Appeal Tribunal determined that a campaign of vindictiveness orchestrated against a female laboratory assistant by two male co-workers amounted to both sexual harassment and sexual discrimination. Before this time, U.K. tribunals tended to consider sexual harassment as separate from sexual discrimination.