In a recent British Columbia court decision, a university employee was ultimately unsuccessful in a claim of discrimination based on sexual orientation after he was fired when the university discovered he was using a gay dating app.
University Employee Uses Dating App
The employee was an academic advisor in the Faculty of Arts at the University of British Columbia from 2006 to 2016.
Between approximately 2013 and 2016, the employee used location-based apps such as Scruff, Grindr, Manhunt and Squirt, to connect with other gay men. His Scruff profile identified himself as an employee of the University and included a photo but did not use his real name.
Over time, the employee met approximately 150 men through these apps, some of whom were other University employees and about 20 of who were University students. On one occasion, a student that the employee had previously advised at a drop-in session contacted him on Scruff, although they never met up.
University Learns of Employee’s Dating App Use
In early August 2016, an anonymous package was left for the Assistant Dean, Facilities and Human Resources in the Faculty of Arts. It contained screenshots of the employee’s profile on Scruff. One screenshot showed his location as Totem Park, a University residence.
Subsequently, the University met with the employee and showed him the screenshots. The employee agreed the screenshots depicted his profile on Scruff and admitted to meeting up with other University employees and students. At the end of the meeting, the University placed the employee on administrative leave.
University Fires Employee For Using Dating App
Later, the University met again with the employee and a union representative. The University explained its concern that the employee was identifying himself as a University employee and engaging in romantic/sexual relationships with students on social networks.
The next day, the University terminated the employee’s employment. In the termination letter, the University specifically highlighted the fact that the employee identified himself as a University employee on the app. It also highlighted his interaction through the app with a student he had advised, his admitted liaisons with students via the app, and his sexual preferences listed therein. Finally, the letter stated:
“By publicly linking your employment at the University to your profiles on social networks specifically geared towards facilitating romantic and/or sexual connections, you have clearly acted in a conflict of interest. Given your role as an Academic Advisor, your actions in declaring your employment at UBC while posting from one of our residences and expressing those preferences and interests have clearly compromised the University’s interests and risked undermining the confidence and trust of our students, their families, and the public. You were employed in a position of trust and authority with respect to students of the University and you traded on your employment to cultivate romantic and/or sexual relationships with students.”
Employee Alleges Discrimination Based on Sexual Orientation
The employee later alleged that the University and its representatives had demonstrated a discriminatory motivation and/or reliance on discriminatory stereotypes in terminating his employment. He filed a complaint with the British Columbia Human Rights Tribunal (the “Tribunal”).
Specifically, the employee alleged that his sexual orientation had been a factor in his termination based on the following arguments:
- The University treated him differently than other University employees who use private dating apps but are not gay men;
- The University relied on stereotypical views of gay males in interpreting his profile and concluding that he was actively seeking to hook up with students; and
- The University’s reliance on its conflict of interest policy was illegitimate since the University does not prohibit sexual relationships between employees and students.
Tribunal Rejects Employee’s Complaint
In a first decision, the Tribunal member reviewed the employee’s arguments. In the result, the member determined the evidence before her was insufficient to take the complaint out of the realm of conjecture and therefore, that the University had established that it had no reasonable prospect of success, stating:
“While [the employee] need only prove that his sexual orientation was a factor in UBC’s termination of his employment, I am satisfied that he has no reasonable prospect of doing so. In that regard, I am sensitive to the fact that UBC was likely reacting to the Terms [used in his profile] through a heteronormative lens. I am also sensitive to the fact that gay men have historically been and continue to be subject to pernicious stereotypes about the way in which they express their sexuality. I have accordingly taken considerable time in contemplating [the employee]’s arguments and reviewing the evidence in that light. However, in all of the circumstances of this case, I do not see anything beyond [the employee]’s conjecture to support an inference that his sexual orientation was a factor in UBC’s placing him on administrative leave and the ultimate decision made in light of his revelation that he had in fact hooked‐up with students via the App.”
The employee sought reconsideration of the member’s decision.
Upon reconsideration, the Tribunal member also concluded that the employee’s claim had no reasonable prospect of success and confirmed the original decision.
The employee applied to the Supreme Court of British Columbia seeking judicial review of the Tribunal’s two decisions. In order to succeed, the employee had to demonstrate the decisions were patently unreasonable.
Court Rejects Employee’s Application for Judicial Review
After reviewing the Tribunal’s decisions, the court found that the Tribunal members had in fact considered the employee’s arguments but were not convinced by them. As such, it did not find the decisions to be patently unreasonable.
In the result, the court, therefore, dismissed the employee’s application for judicial review.
Contact Peter A. McSherry for Experienced Advice on Discrimination in the Workplace
If you feel that your rights have been violated, seeking the advice of an experienced and informed employment lawyer can help you understand your rights and your options to remedy the situation. Peter McSherry has extensive experience and knowledge handling cases on behalf of employees in a variety of industries. If you have been the victim of harassment or discrimination, he can help you evaluate your options and pursue the resolution that can best serve your interests and compensate for the pain and damages you have suffered. Contact Peter A. McSherry Employment Lawyer online or by calling 519-821-5465 to schedule an initial consultation. Harassment and discrimination cases are not to be taken lightly. Your rights deserve protection, and you deserve to work in a non-hostile work environment.