The Workplace Romance

Sexual harassment issues have dominated the media following the myriad of allegations made against Hollywood celebrities and well-known political personalities. Issues of distasteful workplace conduct have recently taken on a new focus.

A related topic is the “consensual” office relationship. The Vice President of Marketing is “secretly” dating one of the sales representatives who reports to her. Harry in accounting is open with his romance with a colleague and peer. The workplace romance presents difficult legal issues.

Can a person in a position of power truly be said to be engaged in a voluntary relationship with a subordinate? What of peer to peer? What preventive steps can an employer take to set out its expectations?

This already complicated topic can be even more complex should the relationship in question become one protected by human rights legislation by a common law relationship.

Overview

A synthesis of the caselaw which follows reveals an evolution of the law on this subject.  Despite developments over the years, the law still remains somewhat uncertain.

The following steps is an overview of the legal issues and what steps should be taken by a prudent employer:

1. A firm policy document should be developed dealing with inter-office romance. Whether this policy prohibits such relationships on its face is a judgment call for the employer. Likely, the wiser strategy is to mandate the disclosure of the existence, or proposed existence, of such a relationship and to allow the company discretion as to what steps should then follow. A structure which would lead to the avoidance of a reporting relationship or similar barriers may then be contemplated.
2. This policy takes on an added significance should the relationship become a permanent one, sufficient to attract the protections of “marital status” under human rights law. A common law relationship will suffice to attain such protections.^[1] This will then raise the issue of the need to show accommodation to the point of undue hardship. The disclosure obligation will prevent this issue.
3. Absent such a policy, caselaw initially determined that a preliminary issue was whether a relationship in which there is a power imbalance is truly consensual. This issue still exists but the test has been dramatically lowered to “unwelcome”, notwithstanding implicit consent.^[2]
4. The analysis of what is a consensual relationship was initially held to be a two-step process, examining whether there is a power imbalance and proof of exploitation.^[3]
5. The second component of this test, exploitation, is likely not required in the modern context, given a position of a power imbalance and that the wrongdoing has been committed by a person in authority.^[4] This principle has, however not been uniformly applied.
6. The divide is based on whether the employer must also prove actual or a risk of prejudice. The test of “exploitation” as stated in Huang has faded away to prejudice.
7. Simpson allowed for one further conclusion, apart from the one quoted above. The Ontario Court of Appeal also stated that in such a relationship between unequal parties, there is a distinction between conduct to which actual or implied consent has been given, and conduct which is nonetheless unwelcome.
8. The same case spoke to the duty of the senior manager not to engage in such conduct even when he believed that there was actual consent.
9. Given a consensual relationship, a 1994 decision^[5] questioned whether the employer may dictate that such a ban on a workplace relationship conduct is forbidden, absent a contractual term to this effect. The Court of Appeal in Simpson clearly abandoned this notion in cases involving management relationships with subordinates.
10. A further issue is whether the employer must proof actual prejudice or risk of same in the defence of a case brought by the plaintiff alleged wrongdoer, resulting from termination. Given Simpson, this should be limited to a fact situation of a plaintiff who is not in a management position.
11. All of the above must be viewed in the contextual analysis of McKinley to determine if termination is the appropriate level of discipline.

Complex Issues Require Preventive and Clear Advice

The law on this subject is complex. Inter-office romance is a delicate issue to deal with, both for the employer and the employee. If you are dealing with such complicated matters, you will know that it is important to obtain legal advice from competent employment law counsel.

Contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise employees and employers on legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.

[1] Tracey v 502798 NB Inc., New Brunswick Labour and Employment Board, February 2007;  502798 v NB HRC, December 2008. The decision was affirmed but the Court did reverse on the first component of the test.

[2] Simpson v CAC Ontario Court of Appeal. The plaintiff’s leave application was denied. [2002] S.C.C.A. No. 83

[3] in SS v Huang & Danczkay Property Management Inc. and Bela Danczkay written by then Madam Justice Swinton, now Swinton J.A.

[4] Simpson