Muneeza Sheikh On CBC News

Power imbalances in workplace relationships can make consent complicated, experts say

John Tory’s resignation as mayor of Toronto over his affair with a younger member of his staff has raised questions about why a relationship between two adults constitutes news and whether he should have said he would step down.

Tory, who is 68 and has been married for more than 40 years, confirmed to the Toronto Star that the relationship with the 31-year-old former staffer started when he was the woman’s boss, and he called it a “serious error in judgment.”

But more important than Tory’s marital status or the difference in their ages, according to some experts, is the discrepancy in their levels of power and the fact that he was her boss. A situation that can make it difficult — some would say impossible — to fully and freely give consent.

“How do you freely give consent when someone is your boss, has the power to fire you, to get you raises, to ensure that you can move up in the company, that you can connect with people?” asked Farrah Khan, CEO of Possibility Seeds, a consulting company that works on gender equity.

‘Power differential’

Khan says it’s possible that when someone is in a relationship like that, they may not even realize there’s a power imbalance.

“Because at the time you may think you’re different, special,” Khan said. “But in the end, there is a power differential.” She says that in a relationship like the one between Tory and his staffer, the culpability and responsibility lies with the person in the position of power.

“A person in a position of power — political power, employer power, wealth … they have to take responsibility for their actions,” she said. “Yet the person who oftentimes wears it is the person that was the employee … and it can affect their whole lives.”

Toronto’s Code of Conduct for members of council does not explicitly prohibit relationships between colleagues, and employment lawyer Hermie Abraham says many companies and organizations don’t have policies or guidelines around romantic relationships at all.

“So they’ll run into a lot of these grey areas when they have issues that come up but don’t have a way of dealing with them,” she said.

David Rider, the Toronto Star’s city hall bureau chief, tweeted that he received a fair bit of negative feedback following the publication of the story last Friday — essentially accusing the Star of simply outing Tory’s affair and ruining his family. The former staffer has not publicly commented since the news broke.

Rider told the CBC’s Ontario Today on Monday that he and his colleagues put a great deal of consideration into whether the story was in the public interest — and ultimately decided that it came down to the power dynamic.

“The main thing was, were they working together, with him essentially being in control of her career while they were in this relationship,” he said.

Abraham, who owns the Toronto law firm Advocation, says she does not believe that a subordinate is always unable to give consent.

“Not everybody is a victim of circumstance simply because they are dating somebody who is at a higher level or even older than them,” she said.

If individuals do choose to enter into a relationship with a power differential, they need to disclose that relationship, Abraham says, and the person who’s a subordinate or the person who’s a boss needs to move so they’re not in the same reporting structure.

But she cautions against assuming the subordinate has been pressured into the relationship.

“I do feel that you can have a consensual relationship even if there is a power dynamic,” she said. “I think that we have to hear from the people about how they view the relationship rather than impose our own views and judgments about what that relationship is.”

Abraham says doing so sells short the people making choices about relationships they want to have. Since there are many kinds of dynamics that can potentially create a perception of imbalance in a relationship, she says any of them could be used to call a relationship into question.

“People can say that about male-female relationships because they don’t feel that there’s equal power distribution. They can say that about mixed race relationships. We don’t know.”

Concept of consent is ‘fluid’

Muneeza Sheikh, a senior partner at Levitt Sheikh who works in the areas of labour, employment and human rights law, says she believes the concept of consent is still “fluid” in many Canadian workplaces, which she calls “problematic,” given the number of reported cases of workplace harassment she says lawyers deal with.

A recent study conducted for the Canadian Women’s Foundation found that 55 per cent of people in Canada do not fully understand consent when it comes to sexual activity

“Oftentimes, we see that where there is a reporting relationship, even if it’s not necessarily a direct-reporting relationship, you feel compelled as a subordinate employee to concede to your boss’s requests — whether that might be, ‘Let’s go for lunch together, let’s have dinner together,'” Sheikh said.

If those lunches and dinners evolve into a relationship, she says there could then be questions about how the relationship really started.

Sheikh, who also works as the integrity commissioner for the city of Brampton, Ont., says at that point, there may be the need for a conversation with the subordinate employee, “to determine, were you in this relationship because you felt like you couldn’t say no? Or is this just no different than you simply just meeting your person in the workplace, which of course could happen.”

She also says, as a human rights and employment lawyer, it’s important not to make assumptions.

“If we have an employee that says, ‘Look, I was comfortable with the relationship, I was comfortable with the arrangement,’ I mean, we’re not the moral police, right? We’re just we want to ensure that everything is above board from a legal standpoint.”

There can be an impact on other employees, though, who learn about a senior person in a relationship with a subordinate.

“The implications of that could have a long lasting negative and toxic impact in the workplace because the perception could very well be that there was this relationship, that maybe there were certain benefits that were provided to the employee that, you know, he or she had a relationship with,” Sheikh said.

She also noted that when that when these types of situations involve an elected official, there are other implications.

“Public accountability is a real thing,” she said. “They’re also electing you because of who you are. And so you have to embody that.”