Allowing employee romance while reducing liability for harassment
Question: Can an employer ask employees to sign a waiver stating that if they enter a romantic relationship with another employee, the employer is absolved of all liability regarding potential harassment claims?
Answer: A waiver purporting to absolve an employer of all liability regarding potential harassment claims will provide an employer with no more protection than the paper it was written on.
Canadian courts, including the Supreme Court of Canada, have determined time and time again that as a matter of public
policy employers cannot contract out of public interest rights such as those
contained in human rights and occupational health and safety legislation. See Ontario (Human Rights Commission) v. Etobicoke (Borough) and N.A.P.E., Local 3201 v. Newfoundland.
Human rights and occupational health and safety legislation set a floor of protections that employers at a minimum must provide. In this regard, an employer is free to provide employees with protections greater than those required by law, but under no circumstances can an employer provide employees with less.
In Canada, this floor requires employers to take reasonable steps to prevent, investigate, and deter harassment in the workplace. Employers typically satisfy these duties by implementing harassment policies, thoroughly investigating complaints, and by imposing discipline when complaints are substantiated. In this regard, if an employee alleges that he has been harassed in the workplace by his co-worker/romantic partner, simply having a waiver relating to harassment will not absolve the employer of all liability if it is shown that the harassment in fact occurred and the employer did not fulfill its duties as required by law.
While such a waiver may stand as evidence that the relationship between the employees was consensual, and therefore may influence a court or tribunal's ultimate finding as to whether or not the impugned conduct was in fact harassment, a waiver will do nothing to absolve an employer of liability if it is determined that harassment occurred and the employer neglected its duties in reliance on such a waiver.
For more information see:
•Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982 CarswellOnt 730 (S.C.C.).
•N.A.P.E., Local 3201 v Newfoundland, 1996 CarswellNfld 133 (S.C.C.).
