The #metoo movement has had a major impact on how employers react to “office romances” in the workplace. Previously, employers may have simply discouraged or even ignored workplace romances, dating, flirting, etc. However, those attitudes by employers are changing as “office romances” may now come with serious liability attached to it for the employer especially if the “office romance” involves employees where one is a subordinate and the other is a superior.
So what should an employer do? Should they ban dating at the office? Should they fire an employee who engages in an “office romance”?
The first step for an employer is to ensure (as much as they can) that their workplace is free of workplace harassment and discrimination in an effort to minimize their potential liability. This does not mean that they have to ban “office romances” or workplace dating. However, it does mean that they need to put in place certain workplace policies that speak to these issues. A typical policy should deal with 1) what type of romantic or intimate relationships are banned, 2) what would constitute inappropriate behaviors related to harassment in the workplace, 3) what would create a conflict of interest and how the employer would address those conflicts and 4) how the policy will be enforced. For instance, many workplace policies will have certain provisions detailing what will happen if an employee breaches the policy. Employers also have to be mindful of their obligations not to discriminate against employees under the Ontario Human Rights Code, 1990. For instance, barring inappropriate public displays of affection, spouses working together may be protected by the Code under the family and marital status grounds.
Most importantly, any workplace policy dealing with “office romances” must have effective and clear terms about workplace harassment. The workplace policy must set out how an employer is to learn about a complaint of workplace harassment and what procedures are in place to investigate the complaint and how a resolution will be reached. The employer should think seriously about possibly using professional training for its employees so that employees may be able to more effectively address complaints about workplace harassment.
Therefore, whether or not an employer can terminate an employee for engaging in an “office romance” will be generally dependent on what provisions are contained within the workplace policy and on the context of the employment relationship as a whole. However, if the employer does not have a workplace policy related to these issues, the courts may look at certain factors to determine if the employee should be terminated for cause because of behaviours related to an “office romance.” For instance, the court may look to see if the relationship was in fact consensual. The court may also look to see if there was any conflict of interest related to the “office romance” that could lead to a termination for cause. The court may look to see if the “office romance” was a potential negative issue for other employees such as it being the cause of certain workplace disruptions or disputes or even poor performance.
Finally, if an employer has any questions about how the above could affect them, it is important to contact an employment lawyer to obtain assistance.