Managing Workplace Relationships

R. Mark Fletcher, LL.B

Grosman, Grosman & Gale LLP
© Leader Quest Inc. and R. Mark Fletcher

As Minister of Justice in 1967, Pierre Trudeau introduced progressive amendments to Canada’s divorce legislation with the famous quote “the state has no place in the bedrooms of the nation.”  While many in 2006 would agree that government should not infringe upon the rights and freedoms of consenting adults to do as they please in private, the public/private distinction is more ambiguous in the workplace context.  According to federal and provincial human rights legislation, employers have a duty to provide employees with a work environment that is free from sexual harassment.  This requires that employers take steps to eliminate certain types of unwanted negative sexual behaviour and attitudes from the workplace, which leads, at least to some extent, to a need for employer rules or guidelines relating to employee sexual activity.  The types of employer policies and rules relating to intimate relationships in the workplace may depend on the nature of the employer’s business and the types of conduct considered inappropriate.

For instance, a not-for-profit organization with a reputation built on strict adherence to high moral standards will have less tolerance for employees who engage in inappropriate sexual behaviour than an organization whose reputation is not tied to an image of scrupulous morality.  Whatever the desired or required degree of employer monitoring and rule making, it is important for not-for-profit organizations to establish clear guidelines and policies for employees to follow in order to minimize the incidence and reduce the potential severity of sexual misconduct on the part of employees.  It is not suggested that employers take Orwellian measures to eradicate office relationships. 

Implement A Sexual Harassment Policy

Sexual harassment can have a detrimental impact on employees and can lead to a poisoned and negative work environment. Therefore it is vital for employers to have a sexual harassment policy, particularly given the power disparity between managers and their subordinates, which can lead to sexual harassment.  The policy must make it clear to employees that sexual harassment in any form will not be tolerated and it should establish clear and effective sanctions and repercussions for employees who violate the rules contained in the policy. 

Moreover, the policy should establish both reporting, investigation and decision-making mechanisms.  The reporting mechanism will create an internal complaint process whereby the complainant or innocent bystander employee may escalate the harassment problem to the appropriate individual or department within the organization.  In the event of workplace sexual harassment, the complainant or innocent bystander should have no doubt as to the appropriate mechanism for redress.  Although an internal complaint process does not guarantee that each and every incident of sexual harassment will come to the employer’s attention, it is an important component to a comprehensive sexual harassment policy.   An investigative component to the policy will establish a framework to ensure that harassment complaints are treated seriously and the facts surrounding the complaint are properly determined, which will assist the employer in developing an appropriate remedy and sanction, if any, in accordance with the policy.
Finally, decisions should of course be made objectively, based on the facts and communicated to those involved in a timely manner.  

It is recommended that not-for-profit employers invest in training and education programs so that employees are well sensitized to the problem of sexual harassment and the importance of mutual respect in the workplace.  Furthermore, organizations should ensure that employees sign the sexual harassment policy prior to commencing employment and at least once a year thereafter so that the policy not only becomes a clear and expected minimum standard for employee conduct, but also a term of the employment contract.

Conflict of Interest: Safeguards Against Favourtism

It is possible that consensual romantic relationships in the workplace may lead to conflicts of interest wherein an employee in a position of power may influence managerial decisions to benefit his or her partner.  Accordingly, while a sexual harassment policy targets abuses of power where sexual advances between employees are unwanted, an employer is still left with problems that can arise where a consensual sexual relationship between employees leads to power abuses, such as unmeritorious promotions or salary increases. 

This can be a particularly difficult problem for employers to manage.  However, the establishment of a clear policy with effective anti-conflict of interest guidelines is recommended.  At a minimum, employees in positions of power should be encouraged to refrain from relationships or situations that would either create or lead to the perception of a conflict of interest.  While a policy against employees engaging in intimate relationships with fellow employees will have limited efficacy, one that requires employees in management or who exercise managerial decisions affecting employees with whom a romantic interest is shared should be required to declare the potential conflict such that decisions affecting the particular employee can be impartially reviewed.  An alternative safeguard may require the declaration of the conflict or potential conflict and require the decision maker to remove himself or herself from the decision making process, particularly where the decision impacts on the individual’s future employment with the organization such as where the decision maker is faced with having to select individuals for downsizing or promotion.

Conclusion

Not-for-profit organizations are encouraged to take proactive steps to eliminate sexual harassment from the workplace and to minimize both real of perceived conflicts of interest arising from romantic workplace relationships.  Accordingly, the development and implementation of written employer policies on sexual harassment and conflict of interest with clear requirements and sanctions for violations is recommended. 

It is suggested that employers who attempt to prevent workplace romance completely will experience limited success.  However, organizations risk potential legal liability and public embarrassment where steps are not taken to properly manage the workplace to eliminate sexual harassment and conflicts of interest arising from romantic relationships between coworkers. 

This article may be reproduced for distribution as a learning tool for organizations in the not-for-profit sector provided attribution is made to R. Mark Fletcher, LL.B. of Grosman, Grosman & Gale LLP, Toronto; and to Leader Quest Inc.

This article contains material of general interest only and is not intended to provide legal advice or to replace a consultation with a legal professional on any particular matter. R. Mark Fletcher can be reached at mfletcher@grosman.com or 416-364-9599.