Human Rights: Marital and Family Status: What rules can employers set down for workplace relationships?

Posted on : March 12, 2005

Apparently a CEO cannot away with behaviour that Captain Kirk engaged in on a regular basis: affairs with a subordinate. The times, as they say, are changing. I cannot comment on the legalities of the Boeing CEO’s termination as it would have been governed by American law.

But what rules can employer’s set down for workplace relationships?

It is not clear whether the CEO was terminated because he was have an extra-marital affair or because he had an intimate relationship with a subordinate.

If the termination had taken place in Canada, and it was motivated by the fact that the CEO was married rather than single, at first glance, he would have a valid claim under the Human Rights Code for discrimination on the basis of his marital status.

The Ontario Human Rights Code, as well as similar legislation in every other province, prohibits discrimination on the basis of one’s marital status.

Marital status has been interpreted by the courts to include common law spouses, fiancées and even the specific identity of one’s spouse.

The problem with the Boeing CEO, however, was probably primarily that he was having an intimate relationship with somebody who reported directly or indirectly to him and had not disclosed it. Clearly, that would have been in breach of the code of conduct most employers have in place. Although the code of conduct should specifically deal with disclosing workplace relationships, a CEO is always going to be held to a higher standard of behaviour than the supervisor in the mailroom.

The supervisor in the mailroom can claim that in the absence of a requirement to disclose and any evidence of preferential treatment for her companion, the termination cannot be justified. Of course, all that really means is that they can still be fired, but the employer will have to provide pay in lieu of reasonable notice.

The Ontario Human Rights Code does, however, make an exception to the rule against discrimination on the basis of marital status. Employers are allowed to hire somebody, not hire somebody, promote somebody or not promote somebody on the basis of their marital status. But you can’t fire somebody based on their marital status.

Employers can certainly have a policy that indicates that any intimate personal relationships between workers in the company should be disclosed if either of the paramours is in a position of authority over the other. It would be legitimate and bona fide for an employer to wish to insure that nobody is getting preferential treatment as the morale of the entire workplace could suffer. If it was a well-publicized policy, when one of the people was transferred, they couldn’t claim that they didn’t know that it was a likely consequence when they started the relationship.

And in keep in mind, so far marital status has only been interpreted to include common law spouses and fiancées. If the people involved are just sleeping together and you’re not firing them because one of them is married and you are appalled at their behaviour, you can do what you like. Again, it won’t be just cause for termination and reasonable notice will have to be provided.

I have to caution employers that this legal advice is time limited. Inevitably, the Ontario Human Rights Commission will interpret marital status to include serious girlfriends and boyfriends unless our provincial legislature reins it in.

So, what can you do if two people become involved after they both start working for you and move in together or get married? If one doesn’t report to the other, there is nothing you should do and anything you do will likely end up before the Ontario Human Rights Commission.

If one is reporting to the other directly or indirectly, you should take the minimal possible steps to insure the integrity and morale of the organization are preserved. Obviously, someone’s spouse should not be doing the performance reviews and recommending their raises or have any input into the process. Changing reporting structures can often resolve these dilemmas.

When employers hear about a workplace relationship starting up, I sometimes get calls from anxious bosses. They are concerned that if the relationship doesn’t work out, and especially when one has authority over the other, that some sort of sexual harassment complaint will arise and they will get dragged into it.

While that is always possible, the most the employer can and should do is have a sexual harassment policy which is well posted and well publicized within the organization. There is no law against a boss dating her subordinate. There is no law against people who work together becoming romantically involved. The Ontario Human Rights Code does prohibit sexual solicitations by the boss which she knows or ought to know are unwelcome and similar solicitations between co-workers.

It is the not the employer’s job, however, to assume that somebody is being coerced into a relationship.

I have not run into an employer yet who has tried to establish a policy of no relationships within the workplace and very few that ask that it be disclosed. The first policy would be silly to try to enforce as it would be impossible. The second policy is reasonable but always leads to the question, when do I disclose? First date? First kiss? First…?

As published in the Hamilton Spectator, March 12, 2005. Ed Canning practices labour and employment law with Ross & McBride LLP, www.rossmcbride.com, in Hamilton, representing both employers and employees.
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