Q&A on workplace romances

Is a policy needed? Can an imbalance of power truly be consensual?

Q&A on workplace romances

With the resignation of CNN Worldwide president Jeff Zucker, office romances were once again in the spotlight.

And with Valentine’s Day on the horizon, many workers may be considering sending a flirty email or romantic chat message to a co-worker.

But that can make employers nervous — especially when a supervisor and subordinate are involved.

That’s because these dalliances raise many questions: Can a workplace romance truly be consensual? Should these types of relationships be banned outright?

Canadian HR Reporter spoke with two legal experts for answers and advice: Shari Munk-Manel, a partner at McMillan in Montreal, and Dana Du Perron, a lawyer at Nelligan Law in Ottawa:

Q: What are the main concerns for employers when it comes to workplace relationships?

Munk-Manel: “There could be allegations of favouritism, especially if you're dealing with a relationship between a supervisor and a subordinate; it could be harmful for the subordinate's career.

“It could also lead to workplace gossip, which obviously has impacts on morale and the harmony of the workplace. There could be either real or perceived conflict-of-interest situations. For example, if you have a supervisor responsible for deciding on the subordinate’s career advancement or their compensation, or if one of the individuals in a relationship has confidential information and is not supposed to share it with the other.

“Of course, one of the biggest issues that could potentially impact the workplace is if the relationship ends, especially if it doesn't end well. Sometimes, at that point, you see harassment allegations and, often, it will result in one of the employees… having to leave their employment if the relationship doesn't end well. And, of course, that's not ideal for the employer, if they have to lose one of their employees.”

Du Perron: “You have to be careful that you don't penalize a subordinate for the relationship or move them out of their role or do something that could create a constructive dismissal or be seen as them being treated differently than the boss. If possible, you'd want to allow the role to be the same but change the reporting relationship.

“Even that can be problematic if [you’re] reporting to the CEO or something and then, all of a sudden, you're reporting to a lower level… that could be seen as a demotion or decreasing your career opportunities.”

While one-third of workers say they are or have been romantically involved with a coworker, many keep it a secret from everyone at work.

Q: Should these kinds of relationships be banned by an employer?

Munk-Manel: “A policy that completely bans office relationships, in theory, may be something an employer wants to do, but in reality, it could be seen by many employees as overreaching into their private life.

“Also, if you have this type of policy, you may have some employees, a star employee that's faced with the decision of choosing between their relationship or continued employment. A complete ban may also hinder employees from wanting to come forward to disclose a relationship because they don't want to lose their job.

“Sometimes, you would want to prevent the relationship between the supervisor and a subordinate or another, or a relationship that creates a conflict of interest or perceived conflict, but not an outright ban on all relationships at work — that’s the middle ground that some employers would want to strike.”

Du Perron: “I find it's generally good to have a policy on these things, like an anti-fraternization policy or a disclosure policy [but] it's hard to come right out and say, ‘You can't have these relationships.’

“And sometimes employers do want to be a bit hands off in terms of ‘We don't want to know about it.’ But burying your head in the sand might not necessarily be the best way of proceeding because there can be this whole host of outcomes.”

When it comes to romantic relationships between colleagues, HR has typically been slow to step in, says another lawyer, but the #MeToo movement and legislative updates have forced employers to be more proactive.

Q: Should employers have a policy around workplace relationships?

Du Perron: “Where a consensual relationship breaks down, there can be all kinds of problems. But at least if you have a policy where it's required that a relationship be disclosed, particularly where it's the boss and subordinate relationship, the employer ostensibly is protecting itself a bit from having a complaint after the fact that the relationship wasn't consensual.

“That's not guaranteed… But at least it gives the employer the opportunity to control it a bit, even while it's ongoing.

“Knowing that it's happening means you can keep an eye on, first of all, morale with the rest of staff [so] people aren't thinking that there's preferential treatment of the person in the relationship, or that confidential information isn't being shared between levels that otherwise shouldn't be shared, which would be a concern, and can also address whether or not there can be a reporting relationship between the subordinate and the boss.

“Best practice is to have a policy that addresses clearly whether or not relationships are permitted [and] what circumstances they have to be reported in. And then what will happen after they're reported. So, whether there will be a change in reporting relationships, what's expected in terms of maintenance of confidentiality between the couple, and what the discipline or penalty will be for breaching the policy.”

“You do want to, as much as possible, reduce those direct reporting relationships, because that is going to have potentially a problem on other staff morale, and how the supervisor [acts]: Do they treat that person the same way as they treat others? Are they more lenient with them? Do they get additional opportunities that others don't get? Are they sharing confidential information? Are they exercising undue influence, because they're in a direct reporting relationship?”

Munk-Manel: “It's up to each employer to assess how important this type of policy is for their workplace... Often, you won't have a policy on this but you include a little section in the employee handbook. That's something that we see often, but it's really [about] telling employees that ‘If you do have this type of consensual relationship, please come forward.’ So, it is a good idea to have a policy.

“It also could protect employers from liability in case the relationship ends and the employer has to make some kind of adjustment in terms of reassigning somebody so that the subordinate and the supervisor are no longer in a direct reporting relationship, as an example. Having that policy gives the employer a bit of leeway to implement those changes that may be necessary.”

Q: Can a romantic relationship truly be consensual if it involves a supervisor and subordinate?

Munk-Manel: “It is more difficult… although it still is possible. But to do so, the supervisor in particular has to ensure that they obtain clear and explicit consent, and that they really haven't pressured the subordinate in any way in terms of the relationship. And the best way to do that is to ensure that they disclose their status to HR, and that they sign off on the fact that the relationship is consensual.

“At that point, it will be up to the company or the employer to decide how they want to handle this, if maybe there needs to be modifications to the direct reporting relationship, for example. If that's the case, sometimes you would want to make sure that the supervisor is excluded from specific decisions or career advancement decisions regarding the person that they're in a relationship with.”

Du Perron: “Even amongst lawyers, I find that generally, whether it can truly be consensual, there's a divergence of opinions... because… sociological articles and studies [show] how people in positions of power don't necessarily perceive that they have the influence that they have. And they think that they're just making what they see as an inoffensive romantic advance or something, where they think that the person should be totally free to say no [but] people in a lower position might not necessarily feel that they actually can say no.

“Even though you're not necessarily trying to abuse power, it could just inherently happen as a result of that power imbalance. So it really is a tricky balance to strike.

“From a best practice standpoint, it probably is best if people aren't reporting to each other. But that can lead to a whole host of other problems because if it's the subordinate who's getting moved, they can feel like they are being targeted or treated differently; it could be a constructive dismissal if you're changing the position their role significantly, or if you're changing their compensation… there's a lot, that would have to be dealt with there.

“Ideally, if you can change reporting relationship without drastically changing their position, that's going to be the best case scenario.”

Q: What kind of discipline makes sense if the policy is not followed?

Munk-Manel: “First of all, in your policy, you should set out that there will be discipline from a breach of the policy. But you really will have to clearly state what type of policy is and what the discipline is that will be adopted.

“[For example] will there be discipline if the employee allows their personal relationship to affect the work environment? What happens if there's a relationship between a supervisor and subordinate but it's not disclosed? What if there's a conflict of interest? If they don't cooperate?

“It's not easy to implement a zero tolerance policy… it's not easy to terminate for cause, of course, and so it depends on the severity of the conduct in question. But having a clear policy is the first and most important step in being able to implement any discipline.”

In a 2019 case in New Brunswick, the Court of Queen’s Bench considered when a workplace romance could lead to just cause for dismissal.

Du Perron: “It's important to know that discipline doesn't necessarily mean termination for cause because breaching a policy doesn't necessarily mean termination for cause.

“And if you're going to apply discipline for breaching a policy, you have to make sure that it's applied consistently so that different couples are treated the same way. Probably a greater obligation should be on the individual in the higher position, the more senior position, than on the person in the subordinate position. But you want to make sure, especially, that you're not unfairly penalizing someone in a lower position.”

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