Canadian HR Reporter

30 www.hrreporter.com F E A T U R E S S P E C I A L R E P O R T LEGAL GUIDE F O C U S O N : H U M A N R I G H T S CAN A RELATIONSHIP WITH THE BOSS TRULY BE CONSENSUAL? years have passed since actress Alyssa Milano started a social media conversation about #MeToo, yet workplace sexual harassment remains a very present experience for many Canadians. A review of recent employment law and human rights decisions across the country reveals that employees continue to be regularly subjected to unwanted, inappropriate and offensive sexual conduct by their superiors. The Supreme Court of Canada (in the 1989 Janzen v. Platy Enterprises Ltd. decision) defined sexual harassment as conduct of a sexual nature that is unwelcome and has adverse employment consequences for the complainant. But what happens when the boss and a subordinate enter into an actual romantic relationship? Can such a relationship be "consensual" yet still amount to sexual harassment? According to both our courts and tribunals, the answer is yes. A key consideration in workplace sexual harassment cases is the nature of the employment relationship between the individuals involved — and, specifically, whether an imbalance of power exists. A relationship between a supervisor, manager or executive and their subordinate is inherently unequal, and this power imbalance impacts the worker's ability to genuinely consent to sexual conduct. As the Ontario Court of Appeal has explained in the 2001 Simpson v Consumers Association of Canada decision: "Because of the power imbalance in an employee's relationship with a super visor, and the perceived consequences to objecting to a supervisor's behaviour… 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." In other words, just because a relationship appears to be consensual does not mean that both parties are consenting of their own free will. Sexual harassment can exist even when the subordinate employee does not complain about the behaviour. The fact that the employee has not reported the conduct to HR may very well be due to the parties' inequality within the organization. Although it is disheartening to read the stories of vulnerable employees who have been subjected to offensive, unwanted and sometimes coercive sexual conduct in the workplace, the law's response to this behaviour offers some hope: • Human rights tribunals across Canada have increasingly acknowledged the seriousness of sexual harassment through significant awards for injury to dignity, feelings and self-respect, with a recent complaint in Ontario resulting in an award of $170,000 to the employee in 2020 (NK v. Botuik). • Certain courts have found that workplace sexual harassment can amount to constructive dismissal, entitling the harassed employee to damages. • If a manager or supervisor engages in a relationship with a subordinate, this can amount to cause for the superior's dismissal, particularly if the superior failed to disclose or lied about the relationship. So, while sexual harassment remains a very real problem in our workplaces, change is happening: In a shift from the past, legal decision-makers are listening to employees' stories and validating their experience. HR professionals can help by following their example: If you become aware of a romantic relationship between an employee and their superior, take it seriously. Even if a leader says their relationship with a subordinate is "none of your business," it might become HR's business if it ends up harming the employee or the company. If someone is at all concerned about a workplace relationship, they should trust their intuition and their judgment — and remember, they're not alone. An employment lawyer can advise them on their options and help them figure out next steps. CHRR SIMON KENT Founder and Senior Partner Kent Employment Law in Vancouver WENDY WOLOSHYN COO Kent Employment Law in Vancouver SEVERAL

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