Privacy law limits employers’ power to thwart workplace romance

Valentine's Day is not far off and romance is in the air. Many people spend more time at work than anywhere else, so it is only natural that people fall in love among the cubicles and warehouses of the modern workplace.

Given that workplace romance is rampant to the point of inevitability, many employers are asking themselves what, if anything, should be done.

Sexual harassment policies are necessary to address unwanted sexual behaviour in the workplace, but dealing with consensual relationships is a different matter. Employers often adopt a “hands-off” (no pun intended) approach to workplace romance, but question that wisdom when dealing with the aftermath of an office romance gone sour. As gossip and tension increase among staff and valuable employees consider leaving because they no longer feel able to work with their ex-partners, many employers consider implementing anti-fraternization policies.

Indeed, there are a number of reasons why employers may not want their employees becoming romantically involved. Most importantly, where the relationship is between a senior employee and a subordinate, a classic conflict-of-interest concern arises about possible preferential, or disadvantageous, treatment of the subordinate depending on the health of the relationship. In addition, the existence of a power imbalance begs the question of whether the relationship is truly consensual or whether the subordinate feels unable to object. Where there is a significant power imbalance in the relationship involving senior or executive management, it may constitute a breach of trust, even where the conduct is truly consensual.

While these concerns are legitimate, policies categorically prohibiting consensual workplace romances are not likely to be upheld by Canadian courts and arbitrators. The individual privacy rights of employees generally prevent employers from using a private relationship as the basis for an employee’s dismissal, absent evidence that the relationship has negatively affected the employer’s interests. In addition, terminating an employee on the grounds of a consensual relationship can be a breach of human rights legislation if it amounts to discrimination on the basis of marital status.

In the case of Dooley vs. C.N. Weber Ltd. (1994), the plaintiff’s employment was terminated on the grounds that he had sexually harassed a number of female employees. Although these allegations were found to have no merit, the plaintiff had admitted to having two affairs with women in the organization. Following the first affair, he had been warned by the company’s president that if he engaged in sexual relations with any other female employees, this would be grounds for dismissal. The court ultimately held that the president’s warning was “not reasonable in today’s world” and went beyond the scope of the employment relationship.

Employees have a right of privacy, and it is hard to imagine any aspect of human interactions that is more intensely private than sexual relations. That said, where a significant impact can be demonstrated, discipline and even termination of employment may be warranted.

Advice for employers

As stated by the court in the Dooley case, prohibiting workplace romance is not reasonable in today’s world, but steps may still be taken to protect both the interests of the employer and the well-being of employees:

1. Ensure that sexual harassment and conflict-of-interest policies are up to date and that employees are educated regularly on those policies.

2. Rather than trying to impose policies prohibiting fraternization, employers should consider policies requiring management or executive staff to proactively disclose relationships with any subordinate employee so that appropriate measures can be taken.

3. Where a relationship is one in which the true consent of one of the parties is questionable, great care must be exercised to ensure that the situation is not one of sexual harassment.

4. Employees in positions of power should be aware that their involvement in an intimate relationship with another employee may be cause for discipline or dismissal where the relationship places the employee in a position of conflict of interest, or breaches the relationship of trust between the employer and the employee.

Jennifer Russell is an employment, labour and human rights lawyer and a partner at Roper Greyell LLP. This article is for general information purposes only and does not constitute legal advice.