Workplace Sexual Harassment

Relationships with Peers

There is no case law on this subject. Absent an employment term requiring disclosure or a ban on such relationships, one would expect that a workplace romance, between peers, where there is no conduct which may be considered offensive, cannot lead to any form of discipline. This presumes that there is no form of prejudice which the employer may assert.

This view is similar to the circumstances referenced above. In that case, the relationship with a client of the employer was consensual. There was no employment relationship and hence the court determined prejudice must be proven.1

The following is a view of the historical development and practice suggestions:

  1. The employer would be wise to enact a contractual term dealing with inter-office romance. Management to subordinate should be forbidden. At the very least, it should mandate disclosure.
  2. Whether this policy prohibits such peer to peer relationships on its face is a judgment call.
  3. Likely, the wise strategy is to mandate the disclosure of the existence, or proposed existence, of such a peer to peer relationship and to allow the company discretion as to what steps should then follow. A structure which would lead to the avoidance of a reporting relationship or similar barriers may be then implemented.
  4. Absent such a policy, case law initially determined that a preliminary issue was whether a relationship in which there is a power imbalance is truly consensual. This question may still arise in certain situations but the test has been dramatically lowered to “unwelcome”, notwithstanding implicit or actual consent.2
  5. The analysis of what is a consensual relationship was at one time held to be a two-step process, examining whether there is a power imbalance and proof of exploitation.3

The second component of this test is, in this writer’s view, should not be required in the modern context, given a position of a power imbalance.4The Court of Appeal has clearly stated that there should not be allowed be a consensual relationship between management and subordinates.5

As to the need to prove actual prejudice or risk of same, this should be limited to a fact situation of a peer to peer relationship. If, for whatever reason the law in Simpson is not been applied, then the test will be whether the conduct was welcome and if not, the degree of prejudice, real or potential.6

All of the above must be viewed in the contextual analysis of McKinley 7 to determine if termination is the appropriate level of discipline. This also presumes that the relationship between the relevant parties is not one of a common law marriage or actual marriage. Such a finding would then involve a potential human rights violation. The employer must then satisfy the three fold test of Meiorin to show a BFOQ.8

This issue of accommodation is reviewed here.