Toronto Mayor John Tory has resigned due to a workplace relationship with a former member of his staff. This has raised questions about whether workplace relationships are illegal and when they may be viewed as an abuse of power.
Are workplace relationships illegal?
No. Workplace relationships are not inherently illegal. It is not automatically inappropriate to have a workplace relationship. There are no laws or statutes that address this scenario head on. Rather, there are laws that protect workers from sexual harassment and discrimination.
When are workplace relationships inappropriate?
Although a workplace relationship may not inherently illegal, it can lead to situations that violate workplace laws:
- If the relationship ends and one party retaliates against the other – this is sexual harassment and reprisal, which violates several statutes and can lead to claims of constructive dismissal or human rights claims;
- If one party feels compelled to continue in a relationship, this can be treated as a form of sexual harassment;
- If a relationship ends and one party continues to send inappropriate messages, pictures or texts to the other, this can be treated as sexual harassment and harassment;
- If co-workers find out about the relationship and feel that there is favouritism given to an employee, then co-workers can complain. The employer would have an obligation to ensure that co-workers are not prejudiced (passed over for promotions or opportunities).
Thus, while workplace relationships are not automatically inappropriate, there is an opportunity for human rights, discrimination or other workplace claims, particular if that relationship breaks down.
What if there is a power imbalance in the relationship (i.e. a boss and a subordinate have a relationship)?
A power imbalance may exist in many workplace relationships. However, this does not automatically mean that there is a lack of consent or that there is sexual harassment.
The fact that a more senior employee has a workplace relationship with a junior employee increases the potential that the relationship may become inappropriate for any of the reasons outlined above.
Can companies ban workplace relationships?
Yes. Employers can create policies that prohibit workplace relationships altogether. Most will not have such a policy as it will be very difficult to enforce.
Rather, some companies have policies that prohibit relationships between workers and their bosses. As well, some companies have policies that will require workers to disclose to human resources where any relationship exists, particularly if it is between a senior and junior employee.
Mostly, these policies exist so that the company can take steps to ensure that other co-workers do not feel there is favouritism in the workplace and to reduce the possibility that the relationship may be treated as sexual harassment, especially if and when it comes to an end.
Can employees be terminated for engaging in a workplace relationship?
Yes but it could be a wrongful dismissal.
An employer may view the relationship as a lack of judgment or it may view it the relationship or circumstances leading to it as improper, even if someone has not complained.
Sometimes, employers will terminate the employees involved a relationship to protect the employer from the potential fallout if that relationship becomes public or if it breaks down. The fact that these employees are terminated is not illegal, as long as the employer provides the terminated employee with an appropriate severance package.
In a few instances, such as where a senior employee did not follow a policy or if he or she is accused of harassment, the relationship could be seen as cause for dismissal and the employee can be fired without severance. But that can be challenged too.
What about a Love Contract?
a Love Contract is a written agreement between two parties to a romantic relationship who put into writing that their relationship is consensual and not an abuse of power. Although these documents may provide the employer and parties to the relationship with some peace of mind, they are probably not going to absolve anyone of liability if the relationship breaks down.
Despite whatever may be signed, if a party to a workplace relationship feels that she/he was sexually harassed or treated inappropriate at the workplace as a result, it would not matter that a Love Contract was signed.
When will you need an employment lawyer?
If you were in a workplace relationship that you feel was not consensual, you should immediately speak to a lawyer.
If you feel that, due to your workplace relationship, or the fact that you did not accept someone’s overtures to have any form of relationship, you are being mistreated in any way at work, you should immediately speak to a lawyer.
Both scenarios above are serious instances of sexual harassment.
If you were fired due to the fact that you were in a workplace relationship, you should immediately speak to a lawyer as this may be a wrongful termination.
If you are uncertain about your legal rights or the legal implications of being in any form of workplace relationship, you should speak with a lawyer. In any of these situations, the employment lawyers at Whitten & Lublin will be in your corner. We have particular experience in this area of law and will help you to navigate through this very complex situation. Contact us today online or call us at 416-640-2667.