Howard Levitt: For Coldplay concert couple, Canadian harassment law would top privacy concerns

Yahoo

4 days ago

If you want to know how far harassment protections have expanded in Canadian workplace law today, look no further than the Coldplay concert debacle.
While most observers seem to agree that the two colleagues caught canoodling at a Boston Coldplay concert — the chief executive and head of HR for U.S. tech company Astronomer — have been appropriately (and very publicly) shamed, there are divisions on the question of professional punishment and accountability.
I have read arguments suggesting that the relationship, while extramarital, was between two consenting adults, and therefore not deserving of reprimand or termination, or perhaps even investigation. Or that the company had no interest in getting involved, since there was no evidence of coercion or complaints of favouritism or violation of company policies.
None of this is reflective of Canadian law today.
First, all potential harassment must be investigated, whether there is a complaint or not. The fact that a relationship between a superior or subordinate is ostensibly 'consensual' does not end the issue legally.
As the Ontario Court of Appeal noted last month in a case involving Metrolinx: 'There are many reasons why a victim of harassment might choose not to pursue an official complaint, none of which erase the harassing behaviour or the employer's obligation to investigate it to protect the workplace from a hostile or demeaning environment. … (A lack of complaint) does not relieve an employer of its statutory duty (under the Occupational Health and Safety Act of each province) to conduct an investigation' into harassment.
The Court of Appeal in that case made clear that the obligation of an employer to investigate potential harassment is not just owed to the potential victim but to all employees in that workplace.
But does the apparent affair between the CEO and HR head qualify as harassment, which therefore must be investigated?
In 2001, there was a groundbreaking decision by the Ontario Court of Appeal in Simpson v. Consumers Association of Canada, in which the court made clear that there should be no assumption that a relationship is consensual even if it might appear so. Instead, an evaluation of the imbalance of power must occur to see if there may be factors affecting the individual's consent (scared of losing job, afraid of reprisal, etc.).
'It is an error to ignore the supervisory role of the alleged harasser and to treat him as one of the employees. … Mr. Simpson may well have viewed all of his conduct as consensual and therefore as welcome. Because of the power imbalance in an employee's relationship with a supervisor, and the perceived consequences to objecting to a supervisor's behaviour, particularly when the behaviour is not directed specifically at that employee … an employee may go along with the conduct. In those circumstances, the employee will be effectively consenting to unwelcome conduct because she feels constrained from objecting'
This 25-year-old case highlighted that claims of consensual conduct will be closely examined when the individual involved holds a position of power. It is important to monitor relationships involving power differentials, as they give rise to legal risk. The court noted that anyone in a position of authority — and Andy Byron, the CEO in the Coldplay imbroglio would no doubt qualify — 'owes duties to their employer … to protect employees from harassing behaviour and to safeguard the employer from potential civil liability arising from such complaints.
Any CEO consorting with an employee risks that employee later saying that they only succumbed to the CEO's advances to protect their job.
In the Simpson case, the court also noted it is 'a workplace reality that it is difficult for staff to disapprove of the conduct of a superior without feeling that their jobs may thereby be in jeopardy.' It further stated that Simpson 'failed to properly consider whether the reason Ms. X felt that she was obliged to go along with his behaviour was to ensure that she retained her job, which she needed, and to be part of Mr. Simpson's 'inner circle.'
Perhaps most important and relevant to the Andy Byron affair, the court said that a having a relationship with a subordinate exposes the employer to the risk of civil suits, and that it the job of senior employees to ensure an employer carries out its duties to its workers, shareholders and the public so that the company is protected. 'If the supervisor creates the problem,' the court said, 'he is in breach of that duty.'
The suggestion that privacy concerns prevail is also inconsistent with the development of sexual harassment law in this country. Privacy rights are generally dramatically overstated: in other words, in general, privacy rights have little protection under our law and they fall to the wayside next to an employer's duty to stop and investigate potential harassment in their workplace.
There is a common misconception that employers must find that a relationship lacked consent or that there was differential treatment before management can act. This assumes that the subordinate employee will come forward willingly, which, as noted above, may not occur. Employers are obliged to deal with potential harassment prior to any escalation by complaining employees.
Of course, if policies are violated, such as one prohibiting superior-subordinate relationships, which I encourage employers to adopt — or at least policies requiring disclosure of such relationships — the case against the violator is clearer. But superior-subordinate relationships are always problematic, even in the absence of such policies.
Howard Levitt: How the Coldplay concert affair would have played out in Canada
Howard Levitt: Even the most desultory employee can find favour with the courts
In short, in Canada, employers cannot view relationships between superiors and subordinates with equanimity, nor as private affairs. They must investigate from the standpoint that any such relationship may be inherently coercive and, in any event, damaging to the organization and come with substantial liability risks.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada.