Love in the workplace gives employers headaches (Legal view)

Employers are limited in preventing office romances but can reduce conflict of interest and sexual harassment risk

Given the increased awareness of sexual harassment in the workplace, office romances have become a significant concern for employers. While it is difficult to establish an enforceable policy that bans all office romances, it is possible to institute policies that provide a level of protection to employers and ensure office romances do not result in sexual harassment incidents or circumstances of conflict of interest.

Breaking up is hard to do

An office romance gone sour ended up before the Ontario Court of Appeal recently in Menagh v. Hamilton (City).

Robert Menagh was a lawyer who acted as the director of labour relations for the City of Hamilton. He was the senior staff member primarily responsible for the negotiation of labour agreements with the city’s unionized staff and for ensuring the city’s harassment policies were included in collective agreements he negotiated.

Menagh began a romantic relationship with Maureen Wilson, the mayor’s chief of staff reporting directly to the mayor, in 1997. Menagh did not report to the mayor but served as an advisor on important labour relations issues.

The relationship was rocky and, by February 2001, Wilson determined there was no future in the relationship. Over the course of the Easter weekend in 2001, Wilson told Menagh their relationship was over but she hoped they could remain friends.

The trial judge found Menagh refused to accept it was over despite Wilson’s repeated confirmation of this fact. Over the next few months, Menagh engaged in the following unwelcome behaviours that constituted sexual harassment:

• he repeatedly discussed the breakdown of the relationship with Wilson’s co-workers (despite knowing she was a very private person);

• he continued to send flowers to her office;

• he went to her home uninvited and would knock on her front and back doors;

• he stood on the path outside her office window looking in at her;

• he began deliberately parking his car next to hers in the parking lot;

• he continued to send her e-mail messages suggesting a rekindling of their romantic relationship (including proposals of marriage); and

• he commenced actions of reprisal and uttered threats when he learned Wilson had started a new relationship.

The trial judge noted many of these things happened in the workplace and Wilson repeatedly and clearly made Menagh aware his conduct was unwelcome. As such, his conduct amounted to sexual harassment in the workplace.

When Menagh found out Wilson was in another relationship, he tried to have her fired. He met with the mayor and suggested he terminate Wilson’s employment due to a potentially negative newspaper article about her that would soon be published.

The trial judge ruled Menagh’s unsuccessful attempt to have Wilson fired constituted a reprisal for spurning his romantic overtures and he shouldn’t have provided the mayor with any advice about Wilson due to conflict-of-interest concerns.

In December 2001, Menagh was charged with uttering death threats, two counts of criminal harassment and dangerous driving after he drove his vehicle at high speeds in Wilson’s neighbourhood, causing her new partner to have to jump out of the car’s path. The city learned of the charges, conducted their own investigation and terminated Menagh’s employment for just cause, which the trial court and the Court of Appeal upheld because of Menagh’s continued acts of harassment and conflict of interest.

For employers, this case provides a somewhat extreme situation of what can happen when a relationship between co-workers breaks down. What steps can an employer take to prevent similar circumstances?

Develop clear policies

While it is difficult to establish an enforceable policy that absolutely bans all office romances, a policy can clearly stipulate romances between employees who are in a reporting relationship to one another are prohibited.

Relationships between managers or executives and more junior employees invariably involve an underlying power imbalance between the parties. In most cases, this power imbalance will be difficult to overcome, creating a conflict-of-interest situation. It also increases the risk that a sexual harassment complaint can be successfully launched against the manager or executive and the company should the relationship come to an end.

The policy should stipulate both parties are required to inform the employer of the relationship so appropriate steps can be taken to lessen the possibility of conflict of interest or harassment. Often this may require a change of position for one of the employees involved. In some circumstances, a discontinuation of employment for one of the parties may be the only workable resolution.

Separation of work and love

An office-romance policy should also clearly set out the differences between personal and private matters and proper employment matters. Office gossip is disruptive, damaging to reputations and can adversely affect the corporate culture. A professional atmosphere must be maintained at all times. Employees should be prohibited from engaging in gossip, rumours or other similar, negative behaviours.

Policies should also note interactions between employees outside of formal work events can also have a bearing on the workplace and, therefore, employees should be guided by the company’s policies and procedures in respect of all interaction between employees, regardless of location or timing.

Not grounds for termination

Generally, workplace relationships are not grounds for termination of employment. To constitute cause for dismissal, the employer must prove the consensual relationship has had an adverse impact on the company’s operations to the extent the employee’s actions can be considered a breach of the employment contract and continued employment has become unworkable.

From a strictly legal perspective, it is advisable to strongly discourage office romances. However, human nature being what it is, instituting the types of policies set out above is probably the best an employer can do.

For more information see:

•Menagh v. Hamilton (City), 2007 CarswellOnt 2030 (Ont. C.A.).

Chris Foulon is a partner at Israel Foulon LLP, a leading employment and labour law firm in Toronto. Chris can be reached at (416) 640.1550 or [email protected].

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