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Sexual harassment in the workplace has been all over the news lately. Most people are hopefully getting the message that harassment in all its forms, including vexatious comments and non-consensual touching, is unacceptable. Employers need to keep in mind, however, that even consensual workplace relationships can come with a host of problems.
Although they are becoming less common with the rise of online dating, workplace romances are still prevalent. Thirty-five percent of people report dating a co-worker and studies have shown that relationships that begin at work are the most likely to end in marriage. Workplace romance can be a positive thing. Unfortunately, it can also create a headache for managers and human resources professionals when it goes wrong.
What can employers do to govern workplace relationships (and should they)?
The first question an employer should consider is: Do you even want to oversee workplace relationships? As seen below, office relationships can cause issues when they are between a manager and a subordinate, but this can be addressed in a specific policy for managers rather than in a sweeping policy that covers all workplace romances.
While there are reasons that employers might want to have such policies in place, they should be cognizant of the problems strict policies can cause. They can put human resources professionals in the awkward position of scrutinizing consensual relationships, and also policing who dates whom. This, in turn, can lead to resentment from employees, and a sense that their privacy is being invaded.
Furthermore, vulnerable employees may be hesitant to disclose problems that can impact the workplace if there is a strict non-fraternization policy in place. Consider the following excerpt from a case where a woman found herself harassed and stalked by a co-worker she had briefly dated:
K.H. was embarrassed and concerned that the respondent would be discussing personal matters with her at work. Other people at work would hear them talking and she was concerned that her job might be in jeopardy for having an office romance… K.H. met the (respondent’s) parole officer who disclosed previously unknown facts to her. She felt misled about the seriousness of the respondent’s behaviour and that it was threatening…She did not tell the parole officer about her troubles with the respondent because of the looming threat she felt to her employment if she did not do as she was told by the respondent.
In all cases, use of workplace fraternization policies should be balanced with the importance of employees feeling they can openly disclose distressing behaviour on the part of coworkers, without fear of losing their job.
So is a policy governing workplace relationships right for your office? Below are some things to consider.
Do office romances make people less productive?
The answer is a resounding “maybe”.
A poll of human resources professionals found that twenty-four percent reported decreased productivity among staff members involved in an office romance, and more surprisingly eleven percent reported decreased productivity among the co-workers of those involved in an office romance. When your significant other works down the hall, there can be a temptation for long lunches and mid-day chats, which can impact overall productivity. In turn, this might eventually cause resentment among coworkers who aren’t getting the same amount of down-time.
Others, however, argue that working with one’s romantic partner can actually increase productivity by limiting outside distractions; when you and your partner share a workplace, there is an opportunity for quality time during lunch and coffee breaks. Employees might therefore be willing to work longer hours than those who have to rush home to see their spouse.
What can employers do?
If employers have already established that they are accepting of workplace relationships, the best strategy is to focus on actual productivity, rather than on the relationship. If an employee’s productivity has taken a noticeable dip, explore the reason for that with the employee rather than assuming it is related to their workplace romance.
Can workplace romances have a negative impact on the culture of the workplace?
The potential impact of an office romance on workplace culture is two-fold: 1) it can create an expectation that co-workers are open to dating each other, which can in turn make individuals desensitized to the fact that sexual advances are unwelcome; and 2) it can make co-workers uncomfortable when a couple brings public displays of affection into the workplace. An extreme example of the second situation occurred in a case where a high-level manager sat naked in a hot tub with his assistant, with whom he was having an affair, during a workplace social event. This, among other egregious behaviours, created “a workplace which was infected by sexual harassment.”
Even in less flagrant forms, such as kissing or touching, public displays of affection in the workplace can create an unprofessional atmosphere that can be distracting and distasteful to other employees.
What can employers do?
The first situation is best addressed through a comprehensive workplace harassment policy and program. It should be clear that sexual advances and invitations that are clearly unwelcome will not be tolerated, whatever the thinking behind them.
Similarly, employees should be made aware that sexual harassment can also occur when unwelcome sexual behaviour occurs near them, even if it is not directed at them. Policies should clearly articulate that all staff members are expected to behave in an appropriate and respectful manner, and staff training should be provided on how to maintain a comfortable, professional working environment.
What additional considerations arise when a manager dates a subordinate?
A relationship between a manager and an employee who reports to them can raise a number of issues and complications. One important consideration is whether a person can ever fully consent to a relationship with an individual who has the power to fire or promote them. Is it really possible to put that power dynamic entirely out of one’s mind when considering a romantic invitation? The Ontario court considered this issue in a case involving a relationship between a manager and a subordinate:
The problem which appears to separate the plaintiff and the defendant is a full understanding and appreciation of the word ‘consensual’. Without putting too fine a point on it, the plaintiff’s position appears to be that if two adults agree to something it is consensual. The defendant’s position appears to be that consent may sometimes be signified by the words “I agree”, or “yes”, sometimes by unmistakable conduct freely demonstrated, and sometimes by silently going along with the request. However one seeks to demonstrate consent, one must ask the real question – ‘were both parties free to consent without any pressure, real, potential, or perceived, which might impact on the degree to which, if at all, a relationship can be called consensual in the truest sense of the word?’
In any case where an individual’s livelihood is perceived to be on the line, true consent will be challenging to establish.
Another consideration is conflicts of interest that can arise when a manager is romantically involved with an employee. In any situation where a manager is supervising an individual with whom they have a close personal relationship, objectivity can be compromised.
In Carroll v. Emco Corporation, the BC Court of Appeal noted the importance of a manager being open with their employer if they are in a relationship with an employee whom they supervise:
During the continuation of that relationship, (the manager) conducted performance reviews, gave her salary increases, conducted disciplinary proceedings and promoted (the subordinate), in all of which instances he knew or ought to have known that his employer would want to know of the relationship so it could take measures to avoid the obvious conflict of interest the situation presented.
Even if a manager can make fair and objective decisions related to job duties, discipline and promotions while romantically involved with a subordinate, the perception can still exist that the employee is getting preferential treatment because of the relationship. Amongst coworkers, the perception can be as important as the reality. If the employee who is in a relationship with the boss is genuinely deserving of a bonus or promotion, will coworkers believe that? And if not, what will the impact be on morale?
Finally, consider what will happen if the relationship ends. Will the manager be able to effectively supervise their former partner, without giving the impression that any feedback or discipline is retaliatory?
What can employers do?
Even for workplaces that do not have a general fraternization policy, employers should consider putting in place a plan to deal with relationships between managers and subordinates, including that the relationship must be disclosed to human resources. The courts have recognized that managers, as those entrusted to protect both employees and the organization as a whole, can be held to a higher standard. A manager who puts the employer in danger by creating the impression of unfairness and/or harassment in the workplace, has breached their duty.
The general takeaway is that workplace policies should be specific, and crafted to address the actual problems that can stem from workplace relationships:
- Employees should not be given preferential treatment for being in a romantic relationship;
- Conversely, employees should not be punished when a relationship ends;
- Co-workers should not be made to feel uncomfortable because of a workplace relationship;
- Employees should not be focusing on their workplace relationship to the point that it decreases productivity, or creates a distraction for others;
- Employers should have a highly honed understanding of what is truly consensual and what is coercive when it comes to workplace relationships
By focusing in on the actual issues that need to be addressed, rather than making sweeping (and often incorrect) generalizations about workplace relationships, employers can create policies and procedures that make the workplace comfortable for everyone, while still respecting the privacy and autonomy of employees.
About the Author: Michelle Bird conducts workplace investigations into allegations of harassment, bullying, poisoned work environments, and other problematic workplace behaviour. Michelle also provides workplace investigation and human rights training to staff at all levels.