The Perils of Dating in the Workplace
Does an employer have the right to interfere in the ‘bedrooms’ of its employees when intimate relationships come to rise in the workplace? Can dating in the workplace put an employee’s job in jeopardy? The answer to both these questions could be ‘yes’ if the workplace relationship is negatively interfering with the employer’s legitimate business interests, has the potential to bring with it legal risks/liabilities, or is otherwise in breach of any policy(s) the employer has in force.
While at one time it may have been common belief that any form of office romance was considered conduct to be frowned upon, it now seems that our attitudes regarding workplace dating are shifting towards a view of acceptance. A large part of this may have to do with our media culture, and namely, the non-cholent manner in which TV shows and movies often portray office romances as an exciting, romantic, or even conventional occurrence. Realistically, one’s workplace can be an ideal place to meet your other half – you already have many things in common, and likely spend a whole lot of time together.
As a result of these changing times, employers need to be able to deal with the realities of such relationships between its employees, and the legalities and risks that could be associated with them. It is obvious that workplace romances can become very bad news for employers when they turn afoul – especially when relationships between subordinates and superiors come to light (the Bill Clinton & Monika Lewinsky saga being a prime example).
In short, there really are no hard and fast rules when it comes to inter-office relationships, and it could very well depend on the specific workplace you find yourself in. In fact, office relationships between consenting colleagues are not illegal, and we do not have any laws saying that employees cannot date one another. However, employers in Ontario do have a legal obligation to ensure their workplaces are discrimination and harassment-free, which is enough of a reason for employers to be very apprehensive of condoning any form of inter-office dating.
The most serious liability employers face when inter-office romances turn astray are discrimination and sexual harassment claims. Our courts have construed almost any unwelcome sexualized conduct as a form of sexual harassment, and only a fine line may exist between a workplace flirtation and harassment. As a result, employers may go to great lengths to investigate any complaints of sexual harassment and/or discrimination (especially when it involves a hierarchical relationship) – and failure to do so could bring liability against the employer.
Ensuring that the relationship is consensual is what of upmost importance. Understandably, being able to determine whether a relationship between a superior and a subordinate is truly consensual in nature is not an easy task given the power imbalance between the individuals. Simply relying upon anti-discrimination and harassment policies may not be enough when considering the serious legal liabilities employers could face when these relationships come to the forefront. Accordingly, employers are taking it upon themselves to implement and enforce workplace dating policies. Aside from the risks of discrimination and sexual harassment complaints, other reasons why it makes sense for an employer to have a workplace dating policy in place include wanting to protect its business reputation; ensure productivity is not affected; and to protect employee morale (i.e. to ensure there is no favoritism taking place).
Can an employer put a complete ban on office dating?
Technically yes, and an employer may think this is the easiest way to protect itself from potential legal liabilities. However, this option seems archaic. It could ultimately lead to an employer having to lose star employees who are faced with the decision of choosing love over continued employment – in the end, it could end up costing the employer money. Further, a complete ban on workplace dating may deter employees from coming forward to disclose a non-consensual relationship out of fear of losing their job.
A more common approach is for employers to have workplace dating policies that prevent intimate relationships between a superior and subordinate (especially in the same department), or ones that could create a conflict of interest. This type of policy may be preferable in terms of costs (i.e. keeping valued employees) and strikes a balance to protect against non-consensual relationships.
However, any work-place dating policy an employer has should address what constitutes inappropriate behaviour, any rules governing workplace relationships (i.e. no public displays of affection in the workplace; no favouritism) and how the policy will be enforced. For instance, a policy might allow a workplace relationship so long as it is reported to Human Resources and with written confirmation by the parties that the relationship is in fact consensual. It could be even that the policy covers not only employees, but also contractors, vendors, suppliers, etc., to protect against real or potential conflicts of interests.
Can engaging in an intimate relationship with a co-worker be grounds for termination from your employment?
Likely not, but again, it really depends on any specific policies and procedures the employer may have in place. For instance, if an employee lies or misleads an employer when confronted about a workplace relationship and 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 (with dismissal being reserved for the rarest circumstances).
A notable case touching upon the issue of what may constitute just cause for dismissal as a result of an inappropriate workplace relationship is Cavaliere v. Corvex Manufacturing, 2009 CanLII 28396 (“Cavaliere”). In Cavaliere, a senior-management employee was dismissed for cause (without any notice or pay in lieu of notice) for engaging in sexual relationships with two subordinates over several years. The dismissed employee argued that the relationships were consensual, and that the employer had no grounds to dismiss him for cause. The court found that there were grounds for cause – relying on a line of cases that stand for the principal that managerial employees have an implied obligation in their employment contracts to ensure that the work place does not come poisoned due to sexual harassment, and to protect the employer from potential legal action for such harassment.
The court rejected the employee’s arguments that the relationships were consensual because the women he engaged in relations with were subordinates and therefore vulnerable. This was the result even though the court noted that the relationships were, on their face, consensual. Other factors considered by the court when deciding that there were grounds for just cause included the fact that the dismissed employee and the two subordinates he engaged in relations with were married. The husband of one of the women worked for the same employer, as did the employee’s daughter.
The sexual activities often took place within the workplace. Notably, after the first workplace relationship was discovered, the employer provided the employee with a written warning to cease the behavior, but almost immediately after he ignored the warning and entered into a new inappropriate workplace relationship. This second relationship involved a very vulnerable junior subordinate.Having a full-out ban on workplace dating may have the effect of losing great employees. Click To Tweet
Thus, employers may be able to establish just cause for dismissal when dealing with relationships that cross power; however, employers cannot jump the gun on terminating an employee for just cause, and this will generally be extremely difficult for an employer to justify. Generally, absent evidence of prejudice to the business interests or reputation of the employer, an employee’s consensual relationship with a co-worker is not in and of itself enough to establish cause for dismissal.
Takeaways for Employees:
- Tread very carefully when engaging in any romantic or otherwise promiscuous relations with a co-worker. The fall out of a workplace relationship can be humiliating and could damage your reputation. If you hold a position of power, it may never be a good idea to date an employee in the workplace – is the relationship worth risking your reputation/job?
- 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 a lawyer or your HR representative to seek clarity;
- If a policy requires that you disclose the relationship, ensure you follow the outlined procedures and processes before it becomes too late (i.e before rumors are swirling around the office); and
- 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.
Takeaways for Employers:
- Don’t turn a blind eye to inter-office dating;
- 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 into 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 for the reason that 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
- Whatever policy the employer may or may not have, the employer must ensure that any enforcement measures regarding inter-office relationships are carried out/enforced equally and consistently.
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 a lawyer to determine the best course of action.
Jennifer Corbett is an associate lawyer with Samfiru Tumarkin’s Labour and Employment Law Practice Group in Toronto, Ontario.