Many people spend the majority of their waking hours at work. Close bonds and friendships often develop between coworkers and, at times, romantic or sexual relationships result.
So what’s an employer to do when the “laws of attraction” pose risk to the workplace – possibly even clash with the laws of the workplace? Forbid employees from having intimate relationships? Or allow them, but with restrictions?
Risks of consensual romantic or sexual relationships between coworkers
Having happy, fulfilled employees is good for business. Yet, when such fulfillment involves employee romances, an employer needs to recognize that this can be risky for business for various reasons, such as:
1. Intimate relationships may cause distractions in the workplace.
Even when all goes well in an intimate relationship, it can be a distraction to both the employees involved and their coworkers. The employees involved may be less focused on work and more focused on each other. Their coworkers, in turn, may find the relationship to be a subject of workplace gossip.
2. Intimate relationships may cause actual or perceived favouritism.
Coworkers can also become resentful or bitter about intimate relationships in the workplace. This is often the case where an individual is receiving, or perceived to be receiving, favourable treatment over others because of the relationship (e.g. sleeping with the boss).
Consider the situation of John and Ann who started a relationship six months ago after Ann and her husband separated. John is well-liked in the workplace, and holds a senior sales position. Ann was working in an entry level sales support role when their relationship began, but was recently promoted over longer term employees to an account manager position in the sales department.
Ann was objectively the best candidate for the promotion. She interviewed well, had all of the requisite education and had strong performance reviews. Nonetheless, Ann’s coworkers, who were aware of her relationship with John, felt that she got the promotion – at least in part – because of that relationship. It didn’t help that John was overheard speaking highly of Ann to his friend, the hiring manager who oversees the sales department.
3. Intimate relationships may cause other conflicts of interest in the workplace.
Employees are expected to act in the best interests of their employer and not engage in behaviours that create conflicts of interest. Having close relationships in the workplace, especially of a romantic or sexual nature, can make this tricky. What is best for the business may not align with what is best for an individual employee and, when you or someone else of importance in a business is involved in an intimate relationship with that individual employee, this creates a conflict of interest.
Using the situation again of John and Ann, if the employer were to decide to eliminate one account manager position, Ann may be the logical choice as the most junior account manager. If John finds out that Ann is being considered for termination, it may be difficult for him not to let Ann know or to otherwise take steps to try to encourage the employer to make a different decision. Even if he were not to become aware in advance, the employer would undoubtedly be concerned about how John would react to such a decision (i.e. Would he be angry? Would his commitment to the business be reduced? Would he seek out employment elsewhere?) and, as such, may keep Ann over other more senior account managers to avoid risking its employment relationship with John.
4. Intimate relationships may increase risk of workplace violence from an outside source.
From time to time, an intimate relationship in the workplace may involve individuals who are married to, or already in a relationship with, someone else. There is some risk that, when the spouse/boyfriend/girlfriend finds out about the intimate relationship, he/she will be angry and attend at the workplace to confront or potentially cause harm to his/her spouse/girlfriend/boyfriend and the other individual involved.
5. Potential negative impact on the workplace when the intimate relationship ends.
Many intimate relationships end at some point. The difference is that, when a workplace relationship ends, the employees involved still see each other in the workplace and may, in fact, need to work closely with each other in a positive and productive fashion on a daily basis. This can be hard and, for some, impossible.
The situation may create bitterness and yet another workplace distraction – not only between the employees involved, but also between their coworkers as “sides” may be taken. It may lead to high rates of employee absenteeism among the employees involved, particularly the employee most upset by the breakup. Ultimately, the employer may lose one or more good employees over the situation, either because they voluntarily leave or are terminated if a positive working relationship is not feasible in the circumstances. Termination by the employer in such case would be “without cause” and, as such, result in unnecessary termination costs being paid by the employer.
6. What starts as a relationship between two consenting adults may not end that way.
The relationship was fun at first for Ann. John made her feel sexually attractive and good about herself. But she ultimately decided that John was a rebound relationship and told him that it was over. John had always found Ann to be very attractive and thought what they had was special. He continued to pursue the relationship, asking Ann to spend time with him outside the office, sending her texts of a sexual nature and, even once, trying to corner her in the hallway for a kiss.
After Ann made it clear to John that their relationship was over, he knew or reasonably ought to have known that any further conduct of a sexual nature was not welcomed by Ann and must stop. Unwelcomed sexual advances constitute prohibited workplace sexual harassment under both Ontario’s Human Rights Code and Occupational Health and Safety Act, which exposes both John and the employer to liability. It can also form a rational basis in certain circumstances (e.g. where the employer is aware of the unwelcomed sexual advances but does not take reasonable steps to stop the conduct, etc.) to justify an employee leaving the employment relationship and claiming to have been constructively dismissed by the employer.
7. Sometimes an employee later claims for vexatious reasons that a consensual relationship was not, in fact, consensual.
Consider the situation again of John and Ann. This time, Ann tells John that the relationship is over because she has reconciled with her husband and John respects that decision. Months later:
- Ann’s husband hears rumors that she had slept with John and, even though they were separated at the time, he is furious. In a misguided effort to save the marriage, Ann denies having had a consensual relationship with John, claiming that he pressured her and that her job was in jeopardy if she did not submit to his demands. Ann’s husband forces her to leave her job and hires an aggressive lawyer to commence legal action against both John and the employer.
or
- Ann’s employment is terminated as part of a workforce reduction and she is very unhappy. In a strategic attempt to get a larger Separation Package, Ann claims that she was a victim of workplace sexual harassment by John and, further, that she was targeted for the workforce reduction, at least in part, as a reprisal for ending the relationship with John.
John and the employer will, of course, need to refute these allegations. It can be difficult to prove that a workplace relationship was consensual – especially where power imbalances exist (e.g. supervisor/subordinate relationship; ability to influence decisions impacting the other employee; etc.). This will similarly be the case with the reprisal claim. These types of cases are generally expensive, time-consuming, public and unpleasant for everyone involved and, of course, could result in significant liability to John and the employer if unsuccessful.
So what can an employer do?
There are many strategies that employers can implement to minimize the risks that stem from romantic or sexual relationships between coworkers. These include:
1. Implement an Intimate Relationships in the Workplace policy.
There is no law in Ontario that prohibits an employer from discouraging or disallowing employee relationships, even when consensual. As such, an Ontario employer is free to decide whether its policy will entirely prohibit romantic or sexual relationships, or simply place restrictions and conditions on when such relationships are permissible.
2. Do not allow employees in a direct reporting relationship, or where one employee has influence over decisions impacting the other, to be in an intimate relationship.
If the employer is going to permit intimate relationships, place restrictions and conditions on when such relationships are never permissible. We recommend never allowing intimate relationships where:
- One employee is in a direct reporting relationship to the other (e.g. supervisor/subordinate); or
- One employee has influence over decisions impacting the other (e.g. hiring, firing, transfer, discipline, promotion, compensation, etc.).
Ensure that employees understand these restrictions and, in particular, that their upward mobility in the organization may be limited by the intimate relationship. For example, an intimate relationship between two coworkers of the same level may be permitted; however, it would not be possible for one of those coworkers to be promoted to a position that would supervise, or have influence over decisions impacting, the other.
3. Ensure employees understand the expectation that the intimate relationship not negatively impact upon their jobs specifically, or the workplace generally.
Employees need to understand that, despite the intimate relationship, they are still expected to act in the best interests of the business at all times, and this means avoiding conflicts of interest stemming from the intimate relationship. Specifically, ensure employees understand the need to work positively and productively together even if the relationship ends.
4. Require employees to immediately self-disclose all intimate relationships.
Ensure employees understand the requirement to immediately self-disclose all intimate relationships to Human Resources. Human Resources should then satisfy himself/herself by speaking to the other individual involved that the relationship is truly consensual. Both employees should be required to sign a certification to this effect, which includes a copy of the employer’s Intimate Relationships in the Workplace policy. Consider also having Human Resources confirm, on an ongoing basis no less than semi-annually, that the intimate relationship remains consensual and have both employees sign an updated copy of the certification form.
5. Ensure employees understand the consequences of an intimate relationship.
We recommend that employers make it clear to employees that:
- If they are involved in an intimate relationship in breach of the policy, the employer will have cause to terminate one or both of the employees involved (without notice or compensation in lieu of notice, subject only to any overriding minimum obligations then owed to comply with Ontario’s Employment Standards Act, 2000). Alternatively, in lieu of the termination, the employer reserves the right, in its sole discretion, to transfer one or both of the employees involved to different positions in the business, which may or may not include compensation reductions.
- If the intimate relationship ends and/or is otherwise determined by the employer, in its discretion, to be negatively impacting their performance, other employees and/or the business, the employer may take whatever steps are deemed appropriate to rectify the situation, which may result in one or both of the employees involved being terminated (with or without cause) or transferred elsewhere.
6. Remind employees about the employer’s Workplace Harassment policies and re-educate if needed.
Finally, as always – Educate! Educate! Educate! Ensure employees understand all policies and other requirements relating to sexual harassment and the consequences of non-compliance. In addition to understanding what constitutes prohibited workplace sexual harassment, consider whether additional awareness should be provided on what is and what is not considered to be a consensual intimate relationship in the workplace.
Mary Lou Brady practices with the Siskinds Labour and Employment department. If you have questions about the information contained within this article or any other employment questions, please write to marylou.brady@siskinds.com or call 519.660.7794.