Previously printed in The Lawyer's Daily, a LexisNexis Canada publication.
What better way to end our three-part series on employment law lessons learned from watching Netflix's Selling Sunset than to talk about romantic relationships in the workplace. As always, there are spoilers ahead.
If you are new to this series of articles, we are thoughtfully extracting employment law lessons from the fan-favourite reality TV program, Selling Sunset. The show follows some of L.A.'s most successful women realtors, as they compete with the cutthroat L.A. market and each other.
Workplace relationships: Takeaways
Fans will remember that throughout the early seasons of Selling Sunset, viewers were often reminded that Jason Oppenheim and real estate agent Mary Fitzgerald were once in a relationship serious enough to warrant sharing parenting time of two adorable dogs. Early on in the series, we wondered if the true drama of the show would be that these two were working together, despite their previous romance.
While the Jason-and-Mary-drama did not outweigh Christine's contributions (she's getting a lot of air time in our articles, which we think is exactly what she would want), it was a recurring theme on the show for the other agents to question whether Jason was giving Mary preferential treatment in the form of more or better work. Season three, episode four is appropriately titled "Everybody Loves Mary" and in this episode, some of the other agents, Maya, Christine and Heather, question how Mary has received so many highly valued listings from Jason. Similar discussions amongst the realtors followed the announcement that Jason and Chrishell were dating in season five.
Relationships in the workplace may tantalize the viewers, but can be a source of headaches for employers, especially when they end.
Let's be clear, legally speaking, romantic relationships in the workplace are allowed, barring a policy that might limit relationships or require disclosure. We spend a lot of our time working with one another, and it is only natural that on occasion, co-workers might form a special connection (for further research on this topic, see Suits). However, these relationships can cause problems from an employment law perspective.
Here are things to watch for regarding romantic relationships in the workplace.
1. Employees may need to disclose their relationship to their employer
Employers need to have the ability to operate the business effectively. That becomes difficult when employees' dating lives cause a distraction in the workplace. This situation is perfectly illustrated in Carroll v. Emco Corp. 2007 BCCA 186, where the court described the workplace as a "soap opera." Can you imagine a more appropriate case for an article about Selling Sunset?
Naturally, one becomes suspicious when an undeserving co-worker receives preferential treatment from her manager. In Emco, co-workers raised eyebrows about the employee's positive performance reviews, salary raises and promotions. In response to queries from co-workers and his superior, the manager denied any affair with the employee.
The relationship ended bitterly, and the manager admitted to the relationship in the wake of the fallout. Due to his deception, and the commotion caused to the business's operations, the employer terminated the manager's employment, offering him a non-supervisory position at another branch with salary and benefits red circled. The supervisor denied this offer and pursued a wrongful dismissal claim.
The court dismissed the manager's claim. In holding for the employer, the court stated, "what is important is that the [manager] gave a deceptive answer" when asked about his relationship with the employee. It deprived the employer of opportunities to take action to resolve problems in the branch due to their relationship. Ultimately, it caused the employer to lose faith in the manager's ability to perform his duties as branch manager.
The lesson here for employees is to be honest about romantic relationships with co-workers. An employer needs to manage its operations effectively and efficiently, and an employee's dishonesty can interfere with that. While honesty is the best policy in these circumstances, there is no requirement to announce the relationship to millions on Netflix.
2. Engaging in intimate activities at work is not appropriate behaviour
Participating in an intimate act in the workplace is grounds for discipline. For example, in Vernon Professional Firefighters' Assn. (International Assn. of Fire Fighters, Local 1517) v. Vernon (City (Bond Grievance)  B.C.C.A.A.A. No. 23, the arbitrator replaced a termination with a five month suspension and a temporary demotion for such behaviours.
Readers may be surprised to learn that such activities in the workplace may not be sufficient cause for dismissal. In Payne v. Bank of Montreal 2013 FCA 33, the employee had a long disciplinary track record. Prior discipline included sexist remarks in 2008 and a suspension later that year after an assistant manager complained about the employee. The investigation into this complaint revealed that the assistant manager and employee had engaged in intimate acts during and after work hours. The employer terminated the employee after he breached his confidentiality obligations with respect to the investigation. Following the termination, the employee filed an unjust dismissal complaint.
The court found termination to be excessive. While serious risks of harm were created by the employees' conduct, the employer suffered little actual harm. In viewing the totality of the evidence, and the relevant circumstances, dismissal was not reasonable.
3. Employers have a responsibility to keep the workplace free from harassment
While Jason and Chrishell ended their relationship, Mary maintains that Jason is still "madly in love" with Chrishell. Jason should carefully consider whether he will reveal his feelings to Chrishell. In The Employee v. The University 2020 BCHRT 12, a human rights complaint followed a faculty member's declaration to an employee: "I am crazy about [you]." The employee brought forward the complaint alleging discrimination on the basis of sexual harassment, contrary to the B.C. Human Rights Code.
The tribunal found the compliments made by the faculty member to the employee were regarding her job skills rather than her appearance. The faculty member was apologetic for the comment about being "crazy about" the employee. While the comment was of a sexual nature and unwelcome, the faculty member knew that it was unwelcome and regretted it.
The tribunal also found that the negative impact from the comment given by the faculty member did not constitute adverse impact (which is required to meet the test for discrimination). Despite the power dynamic between a faculty member and the employee, the faculty member was not the employee's supervisor. The complaint was dismissed.
In some circumstances, an employee can also make out a complaint under workers' compensation legislation where the employer fails to respond appropriately to complaints and concerns of sexual harassment in the workplace.
And that's it, folks! You've read our third and final article on employment law lessons learned from Selling Sunset. We've certainly had fun writing these articles, and we hope you had fun reading them too.
All five seasons of Selling Sunset can be streamed on Netflix.
This is the third instalment in a three-part series: Part one: Lessons from Selling Sunset, Work parties. Part two: Lessons from Selling Sunset: Workplace gossip.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.