Does an employer have the right to interfere in employees’ social relationships in the workplace? Can dating a co-worker put your job in jeopardy? The answer to both questions may be ‘yes’ if the workplace relationship negatively interferes with an employer’s business interests, presents any potential risk, or is in breach of an employer’s policies.
There really are no hard and fast rules when it comes to inter-office relationships. In fact, intimate relationships between consenting colleagues are not illegal per se. However, employers in Ontario have a strict legal obligation to ensure that their workplaces are discrimination and harassment-free. This alone is enough of a reason for employers to be very apprehensive about condoning any form of inter-office relationships and for employees to be cautious if pursuing a relationship within the workplace. It is important for both employees and employers to consult an employment lawyer or their HR department with any questions on how to deal with relationships in the workplace.
Advice for employees:
Tread very carefully when engaging in any romantic relations with a co-worker. The fallout of a workplace relationship could damage your reputation. If you hold a position of power, it is never a good idea to date an employee in the workplace.
Ensure you are aware of and understand any policies your employer may have regarding dating in the workplace or regarding real or potential conflicts of interest. If you are in a workplace relationship and are uncertain of how any such policies apply to your circumstances, it is always a good idea to consult with an employment lawyer or your HR representative to seek clarity.
If a policy requires that you disclose the relationship, ensure that you adhere to that policy.
Even if your workplace does not have any policies dealing with workplace dating and/or conflicts of interests, it may be better to confidentially disclose the relationship to HR to be able to have some control over the situation.
Advice for employers:
Don’t turn a blind eye to workplace relationships.
Consider having some form of a policy that deals with the realities of workplace relationships (i.e. preventing relationships between superiors/subordinates and real or potential conflicts of interest). Such a policy should also outline procedures for reporting any such relationships on a confidential basis and clearly outline measures that could be implemented if a breach of the policy occurs.
Having a full-out ban on workplace dating may have the effect of losing great employees and costing an employer in the long run. Just as employees must weigh the career risks of entering workplace relationships, managers should assess the risk of pushing employees away with overly strict policies;
Review, revise and update discrimination and harassment policies, and always investigate all claims of sexual harassment;
Never jump the gun on terminating employees because they have engaged in an inter-office relationship. Employers are likely able to implement less drastic measures (i.e. a written warning or suspension) before even considering termination. Open communication/disclosure with the employees involved might result in finding accommodations that can work for everyone (i.e. separating the employees at work so they don’t work under one another); and
You must enforce any measures regarding office relationships equally and consistently.
Discrimination and sexual harassment concerns
The most serious liabilities that employers face when inter-office relationships move beyond the typical co-worker relationship are discrimination and sexual harassment claims from their employees. Unwelcome sexualized conduct is viewed as a form of sexual harassment, and there is a fine line that exists between workplace flirtation and harassment. Thus, employers must go to great lengths to investigate any complaints of sexual harassment and/or discrimination (especially when it involves a hierarchical relationship). Failure to do so could bring significant liability against the employer.
Ensuring that the relationship is consensual is of utmost importance, although it may be difficult to determine whether an intimate relationship between a superior and their subordinate is truly consensual, given the power imbalance that often exists. Anti-discrimination and harassment policies may not be enough when considering the serious legal liabilities employers could face when these relationships occur. This is why it makes sense for an employer to have a workplace dating policy and share it with all of its employees.
For employees the main question to be answered is: Can an intimate relationship lead to termination of employment?
Likely not. However, if there is a workplace dating policy in place and an employee lies or misleads an employer when confronted about the relationship, especially if that employee is in a high position of trust or authority with the company, there may be grounds for termination. Many policies will stipulate that if you are in breach of a workplace policy, there may be grounds for disciplinary action, up to and including dismissal. A “for cause” termination would be reserved for the rarest circumstances.
Cavaliere v. Corvex Manufacturing is a notable court case featuring a senior-management employee who was dismissed for cause (without severance pay) for engaging in sexual relationships with two subordinates over several years. The court found that managerial employees have an implied obligation in their employment contracts to ensure that the workplace does not become poisoned due to sexual harassment, and to protect the employer from potential legal action for such harassment. The court also decided that even though consensual, the women were subordinate and vulnerable thus creating a poisoned work environment.
While employers may be able to establish just cause for termination when dealing with relationships that cross power, they should not jump the gun and immediately terminate an employee when a relationship is revealed. A just cause dismissal is extremely difficult for an employer to prove, and is considered “capital punishment” in employment law. Unless there is evidence to suggest that an employee’s consensual relationship is harming business interests or the employer’s reputation, it will be tremendously difficult to establish a cause for dismissal.
Whether you are an employee or employer, if you are uncertain about the legal implications of a workplace relationship, it is always a good idea to consult with an employment lawyer to determine the best course of action.
Alex Lucifero was featured on CTV Morning Live Ottawa for a special segment about workplace relationships in the #metoo era.
Alex Lucifero leads Samfiru Tumarkin LLP’s Ottawa office as its managing associate, providing sound advice to both employers and employees on all aspects of labour and employment law, including wrongful dismissal, severance packages, terminations and workplace harassment. He is often called upon by local media to comment on topics concerning labour and employment law matters.
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