Office romance can be a tricky business. Whether it's because of human nature, bad timing or just bad luck, the legal fallout from dating at work is back in the news, making headlines as corporate executives and government officials continue to roll the dice, losing or leaving their jobs because of a workplace relationship gone awry.
But office romances between consenting colleagues are not illegal, and there are no statutes or laws against dating anyone at work. So why is there a profound fear of legal liability, and when do employers and the courts have a right to intervene?
Dating at work can often lead to sexual harassment claims, especially when those relationships end or in some cases, many months or even years later. The Supreme Court of Canada defines sexual harassment as unwelcome sexual conduct that negatively affects the work environment or leads to adverse job-related consequences. This definition may sound difficult to interpret, but it is not. Lower courts have construed almost any unwelcome sexualized conduct as a form of sexual harassment.
In 2006, a Vancouver man was accused of sexual harassment after he confused a subordinate's flirtations at the holiday party held by his employer, Marriott Hotels, with sexual advances. Although there was no credible direct evidence of sexual harassment, the man, who was head of sales and marketing, knew that a junior female employee was drunk, followed her into a bathroom at an "after-party" at the hotel and later called her room, which prompted a B.C. Supreme Court judge to conclude in 2009 that the man was interested in pursuing a "sexual escapade" with a subordinate and that he had sexually harassed her.
In a similarly tenuous finding, a New Brunswick judge concluded that a company veteran had sexually harassed a female IT manager who reviewed his workplace computer and was offended by the pornographic images she found.
With such precedents to give them pause, and statutory obligations to ensure harassment-free workplaces, it is no wonder that employers go to great lengths to investigate and eliminate harassment at work – and the employees who cause it.
Is there anything wrong with a consensual relationship between a boss and his or her subordinate? How about an executive and an executive assistant? These relationships are as inevitable as the temptations that cause them – and so are the rumours, lost productivity, negative publicity and – knowing how employers dread human rights lawsuits – even attempts at extortion.
I get my fair share of calls each year from both women and men who believe that I can turn the mere presence of a sexual relationship (even the shortest kind) with a senior employee into a six-figure settlement. I invariably tell them that there is nothing illegal about dating at work. But employers and executives have reputations to protect, which is why both should tread carefully with promiscuous habits towards dating work colleagues.
Considering the potential for both real and threatened liability that workplace relationships can set off, many employers no longer turn a blind eye and have decided to monitor them very closely, or in some cases outlaw them altogether, especially where one employee reports to the other.
In a recent case, a Kitchener, Ont., company landed on the right side of a lawsuit after one of its senior employees lied about dating an administrative assistant, after the company implemented a policy on disclosing relationships at work so that it could avoid conflicts of interest, such as situations where one employee in a relationship reports to the other. In this case, the workplace policy was not challenged as unreasonable, and the court tacitly confirmed the long-standing principle that employers have the right to govern their workplaces as they see fit, even as it relates to policies against dating. Therefore, employers do have a right to be in employees' bedrooms when their behaviour or sexual gymnastics follow them back to their desk.
Not all workplace relationships are evil or immoral, and there are many genuine and happy relationships spawned by a workplace dalliance. However, to avoid the potential for negative consequences, I recommend that both employers and employees at least pause before ignoring the risks and consider the following advice:
- The “workplace” is broad. It includes conduct outside of work, including the Internet and social media.
- Review workplace policies. Often, it is not the mere fact of being in a relationship at work that is a disciplinary matter; it is the failure to follow any policies on disclosure or conflicts of interest.
- Duty to disclose. Managers, directors or other key employees in a position of influence may have a duty to voluntarily disclose personal relationships at work even in the absence of a formal policy.
- Training and education. Employers should consider annual training or education on the modern interpretation of harassment at work. This is the cost of prevention.
Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes. E-mail: Dan@canadaemploymentlawyer.com
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