By Howard Levitt and Muneeza Sheikh

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Howard Levitt: What you need to know about office romances in the wake of the John Tory affair Back to video

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Mayor John Tory’s recent revelation about his office romance has left most Torontonians shaken — at least in their belief that long-tenured, reputable politicians representing solid family values are insulated from conventional office affairs. While we know nothing of the details of Tory’s romance beyond what he has shared, it has lead people to speculate on what the lessons might be.

In our world of employment law, we can tell you the following: office romances are being discussed again. By everyone. The inquiries, even from our most sophisticated and legally well-versed clients, are coming in fast and furious. Here’s a look at the most common questions we are getting on the topic.

Is an office romance illegal?

No. It is not illegal to date someone at work, for anyone. It is not unlawful. There is no legislation that prevents people in the office from dating one another.

Despite the relationship itself being legally above board, it can expose the company to liability. This is the prime reason why Canadian employers are interested in who is dating at work. While discussions of relationships between work peers tend to stay at the watercooler level, HR is more interested in romances involving junior employees and the people they report to. It is those relationships that could potentially lead to lawsuits around harassment, sexual harassment and potential violations of human rights legislation. It also is demotivating to the other subordinates who assume that the person in the affair will be advantaged relative to them.

It is not illegal to date someone at work, for anyone

If you are dating a subordinate employee — you should be aware that you are exposing the company to potential liability. If the relationship ends, or ends poorly, the employee may decide to argue that he or she felt forced to consent to the relationship. Other employees could argue that the subordinate in the relationship received special perks or opportunities as a result of the relationship. Break-ups are embarrassing, but getting sued by your ex-lover is far worse, and could have career implications for you.

Do they need to be disclosed to human resources?

No, unless the policy requires it (which we recommend), but in practice we say err on the side of caution and make it known early. While making your new relationship an issue for HR to opine might feel awkward, it is the responsible thing to do. It is particularly important where the relationship involves a junior level employee and a potential (or perceived) conflict in the reporting relationship. In a case we settled recently, the manager in question (married) lied about the relationship, and the company took the position that during his relationship with his direct report, he provided his email password to her and gave her key interview notes to assist in her quest for a promotion. While the relationship is not illegal, disregarding fairness for all employees in the workplace could get you fired. Letting HR in on the relationship early on, gives HR the opportunity to see if they can help avoid both conflict and reporting issues where they exist. And lying about it would be cause for discharge without severance.

Can they be banned?

Like any other policy, a policy preventing people from dating in the office has to be reasonable. In being reasonable, it has to be linked to the business’s operational needs. It will be more difficult to uphold a policy like this if you, as the employer, cannot link it to any issues that have taken place, or might reasonably take place, in your workplace. What is the purpose of the policy? If the policy is to remedy past issues in relation to workplace affairs (i.e. complaints of harassment, nepotism, etc.), it is reasonable. As an employer, you must be willing to ask yourself what you will do with the offenders. Will they be fired? Will it depend on whether there is a reporting relationship? Are there additional sanctions or a harsher penalty for married co-workers getting involved with one another? In our view, it is better to visit each potential office relationship on a case by case basis and avoid a policy altogether respecting the consequences. But there should be a policy requiring disclosure and, in some cases, prohibiting superior-subordinate relationships altogether such that one of the parties has to be removed from the reporting relationship once it is revealed.

What about positional power and consent?

Consent in relationships involving high power bosses and their subordinates is complicated. Can consent exist? Of course (although one decision of the Ontario Court of Appeal opined otherwise). With that being said, we cannot ignore (particularly with the #metoo backdrop) that in some cases, “yes” to your boss means “I wish you did not ask me in the first place.” Countless employees, disproportionately female ones, have come forward complaining about being asked on dates, lunches, or to events outside of the workplace. When the ask feels like an imposition that you cannot decline, consent could become an issue. In the recent years, we have seemingly long-standing relationships where the subordinate complains that she had to go along with the relationship for fear of reprisal. The reprisal is not always job loss but could be fear of demotion, ostracization, lower bonuses or the worry that the growth trajectory will be halted if the relationship ends. This may, in some instances, negate consent. Doing something, even for an extended period of time, because you feel you have no choice is “forced.”

Office romances are not going away. People will meet, and fall in and out of love at work. Romantic relationships at work will continue to form with or without employer involvement. While we cannot prevent them from taking place, we can work to educate employees on socializing responsibly, avoiding romantic relationships where there is serious risk to the company, and disclosing them in a forthright manner when it becomes clear that they cannot be avoided. When the affair involves married co-workers, it makes things more complicated and almost always creates some level of acrimony that breeds unprofessionalism at work.

The workplace romance may not be illegal, but it can still wreak professional havoc in your life.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Muneeza Sheikh is a partner at Levitt Sheikh.