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Dealing with romance in the workplace

This year, the discussion may have a very different tone in light of the #metoo movement
Employment law
Now more than ever, the issue of consensual relationships versus coerced activity will be a focus. Shutterstock

By Stuart Rudner

As the winter holidays become a distant memory and we drift toward Valentine’s Day, talk will turn once again to the topic of romance in the workplace. This year, I expect that the discussion will have a very different tone in light of the #metoo movement and the deluge of sexual harassment claims in recent months.

Now more than ever, the issue of consensual relationships versus coerced activity will be a focus. And unlike what we often saw in the past, where allegations of harassment were met with skepticism, the presumption of innocence has almost disappeared in many cases.

The reality is that for most adults, their social networks are largely based on their workplace. They meet many of their friends at work and, in some cases, those relationships become something more. According to Vault’s 2017 Office Romance Survey:

•             57 per cent of those surveyed have participated in some kind of office romance:

o             21 per cent of these office romances were random hookups

o             16 per cent led to long-term relationships

o             14 per cent led to ongoing but casual relationships

•             10 per cent of those surveyed said they met their spouse/partner at work.

•             59 per cent of men have had an office romance compared to 54 per cent of women:

o             25 per cent of male romances were random hook-ups

o             16 per cent of female romances were random hook-ups

•             30 per cent of respondents said they have a platonic office spouse:

•             The most common way for an office romance to begin:

o             36 per cent working in the same department

o             28 per cent nearby office or cubicles

o             26 per cent happy hour or office parties

o             21 per cent working on same project

•             34 per cent of respondents think social media platforms have made it easier to have an office romance.

•             22 per cent of respondents report using social media to send flirtatious or romantic messages to a co-worker.

•             The preferred method of communication among those who’ve had workplace romances:

o             47 per cent in person

o             28 per cent texting

o             9 per cent online chatting

o             7 per cent phone calls

o             4 per cent email

o             1 per cent social media

•             Boundaries for office romance:

o             32 per cent said it’s unacceptable for co-workers at different levels

o             27 per cent said it’s unacceptable for colleagues who work in the same department or on projects together

o             21 per cent said it’s unacceptable with a client or vendor

o             5 per cent said it’s unacceptable in the office is unacceptable no matter what

•             26 per cent of all of those surveyed say love and let love - all office romances are OK.

Should you be concerned?

Whether it is a romantic relationship, a physical one, or simply a close friendship, there are issues that employers and employees need to be aware of. For the protection of everyone, clear policies need to be established and communicated, and individuals need to clearly document the relationship, even if doing so seems “un-romantic”.

Barack and Michelle Obama met when she was his supervisor while he summered at a law firm. Obviously that relationship worked out well, but not all of them do. As the statistics show, love at work is all too common. In many cases, a relationship between co-workers should not be cause for concern. If it does not create a conflict of interest, and the work is getting done, then it should not be a problem.

Of course, most romances end at some point. Sometimes, issues only emerge after the relationship ends. There have been instances where employees deny that relationships were consensual after the fact and allege harassment, even if that was not the case. Or, perhaps it was, but they were scared to come forward earlier.

An investigation will be required to figure out whether it was romance, harassment, or something in between. To address this, employers can meet with the employees involved, separately, and inquire, to the best of their ability, as to the true nature of the relationship. Some employers also have employees sign agreements pursuant to which they confirm that they are engaged in the relationship willingly and will disclose any conflicts of interest or other issues.

The end of a relationship can also cause other, more serious issues. As many readers will know, Bill 168 was the legislative response to a horrific incident in which a nurse was killed by her former workplace lover. The nurse had ended the relationship but the doctor pursued her, becoming more and more aggressive and threatening. The hospital knew of the relationship and the fact that the doctor was harassing the nurse after the breakup. Nonetheless, they scheduled them both to work the same shift, which ended with her dead.

Some relationships are inherently problematic. Any relationship between supervisor and subordinate raises a conflict of interest, no matter how hard the parties try to “keep it professional” at work. At the very least, there will be a perception of conflict, and this will impact other employees.

There is also an imbalance of power and a heightened risk of abuse. There is always the concern that the more senior employee may be misusing her position of authority and be engaged in sexual harassment – this is what led to the dismissal of an employee repeatedly engaging in sexual relationships with two female subordinates in Dooley v. CN Weber.

Sometimes it can he hard to know what the true nature of the relationship is, or was. Even it began consensually, it can turn into harassment, as we have seen in many cases. In addition, other employees may view the relationship and any actual or perceived favouritism with jealousy, resulting in poor morale. Performance issues, owing to the distractions from the relationship, are also a possibility.

Can you ban relationships in the workplace? Should you?

No.

Ultimately, however, there is no point in thinking that relationships in the workplace should be “banned”. As the judge said in Dooley, these types of relationships are not unreasonable in modern society (and that case was 20 years ago!). It will be impossible to “ban” the relationships — people will just hide them if their employer tries to do so.

The conduct will not change, just the way in which it is handled. And, frankly, there is no legal basis upon which an employer can impose a rule, across the board, to control interpersonal relationships.

Instead, employers need to focus on minimizing the disruptive impacts of such relationships at work. They can impose rules to curb behaviour or relations that hurt the employer or the employment relationship.

The most helpful tool to do this is to create and implement an effective workplace policy to address relationships and the issues that can arise. This may not necessarily need to be specific to workplace romantic relationships, but should certainly be in place to address conflicts of interest. Employees should be required to disclose potential conflicts, including romantic relationships.

Additionally, and crucially, employers should have, and consistently update, their harassment policies. A supervisor who learns of a situation such as the one that led to Bill 168 is under a duty to act, and is best placed to do that when they have a procedure to support them. Pursuant to Bill 132, employers in Ontario must have specific policies and procedures to address reporting and investigation of harassment. All efforts should be made to ensure that the relationship is truly consensual.

Finally, alongside creating these policies, it is also important to implement them properly. All staff and management should be trained — no exceptions. Where possible, incorporate the policy into the employment contract. Offenders are to be disciplined, and where a conflict is reported, monitor the behavior as much as possible for the purposes of the workplace, without interfering in your employees’ personal lives.

This is not a new issue. My team and I have spoken, written, and trained on it innumerable times. The law continues to evolve, as do societal norms. Employers must be sure that they keep up with both. That means updating policies and procedures, providing training, and taking allegations or suspicions of harassment seriously.

Employees: Honesty is the best policy

Your personal life is your own business, except when it creates a conflict of interest or otherwise impacts the workplace. If it does, or even could, then you must make your employer aware of the situation. As awkward as it may be to tell your boss, or HR, that you are dating a co-worker (or your boss), you will have much greater risk if you conceal it.

This was the case in Reichard v. Kuntz, where an employee repeatedly denied his extra-marital affair at work to his supervisors, but was caught when a co-worker told the employer. The severe loss of trust that resulted as a result of his lies helped the employer justify his dismissal for cause — something that could have been avoided completely had he been honest and followed the employer’s policy to disclose romances.

Regardless of the context, workplace romances are as interesting as they are dangerous. At best, you could end up like the Obamas; worse, you could have a Clinton-Lewinsky situation on your hands. Or even worse, a situation like the murder that led to Bill 168.

The author gratefully acknowledges the contribution of Richa Sandill to a previous version of this post.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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