By Howard Levitt and Muneeza Sheikh
The workplace romance may not be illegal, but it can still wreak havoc in your life
Mayor John Tory’s recent revelation about his office romance has left most Torontonians shaken — at least in their belief that long-tenured, reputable politicians representing solid family values are insulated from conventional office affairs. While we know nothing of the details of Tory’s romance beyond what he has shared, it has lead people to speculate on what the lessons might be.
In our world of employment law, we can tell you the following: office romances are being discussed again. By everyone. The inquiries, even from our most sophisticated and legally well-versed clients, are coming in fast and furious. Here’s a look at the most common questions we are getting on the topic.
Is an office romance illegal?
No. It is not illegal to date someone at work, for anyone. It is not unlawful. There is no legislation that prevents people in the office from dating one another.
Despite the relationship itself being legally above board, it can expose the company to liability. This is the prime reason why Canadian employers are interested in who is dating at work. While discussions of relationships between work peers tend to stay at the watercooler level, HR is more interested in romances involving junior employees and the people they report to. It is those relationships that could potentially lead to lawsuits around harassment, sexual harassment and potential violations of human rights legislation. It also is demotivating to the other subordinates who assume that the person in the affair will be advantaged relative to them.
“It is not illegal to date someone at work, for anyone”
If you are dating a subordinate employee — you should be aware that you are exposing the company to potential liability. If the relationship ends, or ends poorly, the employee may decide to argue that he or she felt forced to consent to the relationship. Other employees could argue that the subordinate in the relationship received special perks or opportunities as a result of the relationship. Break-ups are embarrassing, but getting sued by your ex-lover is far worse, and could have career implications for you.
Do they need to be disclosed to human resources?
Can they be banned?
What about positional power and consent?
Consent in relationships involving high power bosses and their subordinates is complicated. Can consent exist? Of course (although one decision of the Ontario Court of Appeal opined otherwise). With that being said, we cannot ignore (particularly with the #metoo backdrop) that in some cases, “yes” to your boss means “I wish you did not ask me in the first place.” Countless employees, disproportionately female ones, have come forward complaining about being asked on dates, lunches, or to events outside of the workplace. When the ask feels like an imposition that you cannot decline, consent could become an issue. In the recent years, we have seemingly long-standing relationships where the subordinate complains that she had to go along with the relationship for fear of reprisal. The reprisal is not always job loss but could be fear of demotion, ostracization, lower bonuses or the worry that the growth trajectory will be halted if the relationship ends. This may, in some instances, negate consent. Doing something, even for an extended period of time, because you feel you have no choice is “forced.”
Office romances are not going away. People will meet, and fall in and out of love at work. Romantic relationships at work will continue to form with or without employer involvement. While we cannot prevent them from taking place, we can work to educate employees on socializing responsibly, avoiding romantic relationships where there is serious risk to the company, and disclosing them in a forthright manner when it becomes clear that they cannot be avoided. When the affair involves married co-workers, it makes things more complicated and almost always creates some level of acrimony that breeds unprofessionalism at work.
The workplace romance may not be illegal, but it can still wreak professional havoc in your life.