07. November 2019 0

Employers may be surprised to learn that not only do they have to manage actions of employees in the workplace, they also have to manage their actions outside of the workplace when it comes to sex between co-workers, particularly in situations where there is a power imbalance.  Employers have a duty to provide workers with a harassment free work environment and that duty can impose an obligation to have policies in place to prevent sexual relations between co-workers in situations of a power imbalance.  An employer taking this duty seriously was recently seen in the case of McDonald’s.  McDonald’s had a policy in place which forbid managers from having romantic relationships with subordinates.  The policy applied to subordinates whether they fell within their direct supervision or not.  The reason for the policy was power imbalance and the impact that this can have on an individual’s ability to consent.  When one individual has power over another in the workplace, the ability to truly consent is compromised.  A subordinate may “consent” to engage in sexual conduct out of fear of reprisal or fear for job security.  Where there is a power imbalance and sexual activity between employees, an employer is exposed to liability for sexual harassment.

Power imbalance is a feature that is commonly seen in sexual harassment cases.  The power imbalance impedes the ability to resist or expressly indicate that the sexual conduct is unwelcome.  The power imbalance can also exacerbate the impact on the harassed person.  Our Courts and Human Rights Tribunals have recognized that the difference in relative authority can play a significant role in how an individual responds to unwelcome conduct.  A power imbalance exists when one person has the power to influence things for another.  A power imbalance can occur in situations of a supervisor, a significant age difference, disparity in level of ability or position within a company.  Free and full consent depends on the absence of a power relationship that leaves one person more vulnerable on account of depending on the other.  If there is not free and full consent, regardless of how a relationship appears, it can be found to be sexual harassment.

There are numerous lessons for employers:

  1. Understand that employees in a power imbalance situation may remain silent even though sexual conduct is unwelcome.
  2. What appears to be consensual relationships in the workplace can actually be unwelcome conduct and if it is that conduct can be viewed by Courts and Tribunals to be sexual harassment.
  3. When investigating allegations of sexual harassment, employers need to keep in mind the role that power imbalance can have on consent.  The lack of overt conduct indicating a lack of consent, or even conduct indicating consent are not determinative of whether there has been sexual harassment.  To determine whether conduct is sexual harassment or not, employers must be mindful of any power imbalances that exist and the impact that these can have on an employees ability to consent.
  4. Employers should have comprehensive policies in place spelling out what behavior is acceptable and what behavior is not.
  5. Employers need to have procedures in place that prevent senior staff from exploiting the power imbalances that exist in every workplace.
  6. Employers need to provide an independent, confidential and reliable process for employees to raise any complaints or concerns about sexual harassment.
  7. Employers should provide regular training to their employees on what constitutes sexual harassment.

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