When Can You Fire an Employee for Behavior In the Bedroom?
Alan Riddell and Kyle Van Schie
When can employees
be terminated because of their sexual proclivities? Does the law entitle you to dismiss a latter-day Marquis de Sade who is careful to confine his deviant sexual predilections to the privacy of his own home? This is one of several questions raised in light of the recent scandal involving former CBC employee, Jian Ghomeshi.
In 1967, Canada’s then Justice Minister Pierre Elliott Trudeau, famously remarked that “the state has no place in the bedrooms of the nation.” Half a century later, many HR professionals assume that the legal corollary of this longstanding public policy is that the employer must similarly have no place in the bedrooms of its employees.
In fact, that widely held assumption is largely mistaken. Shockingly, in 2015, a majority of Ontario employees can still be arbitrarily terminated for extra-curricular sexual activities which offend the moral standards of their employers, even when such activities occur outside the workplace and have absolutely no impact on anyone’s job performance or co-workers. Only a small minority of Ontarians enjoy legal immunity from termination on these arbitrary grounds.
In this regard, the law is convoluted and distinguishes between no less than 3 categories of employees, based in part on their employment status, their sexual orientation, and the type of sex in which they choose to engage.
1. Employees who cannot be terminated for their private extra-curricular sexual behavior, no matter what the circumstances (or almost!):
This first category comprises employees who engage in gay or lesbian sex outside the workplace, and whose sexual preferences are explicitly protected by the Ontario Human Rights Code. Back in the 1960s, such private, homosexual behavior was not only grounds for dismissal but was also a criminal offence. Today, any employer who tries to terminate an employee for displaying an active homosexual lifestyle, at work or at home, would almost certainly find itself hit with a Human Rights Complaint, and ultimately, an Order reinstating the employee to his or her job with full back-pay and human rights’ damages.
Admittedly, no such outcome could ensue if the employee also engaged in some serious criminal act during his or her extracurricular sexual escapades – just as Luka Magnotta sensationally did in murdering, and then dismembering, his sexual partner after having sex with him. Obviously, no Human Rights Tribunal is likely to order any employer to reinstate any employee, be he gay or straight, who commits such a horrific crime.
2. Employees who can only be terminated for their private extra-curricular sexual behavior if that behavior is either very serious or negatively impacts on the employer:
This second category includes most unionized employees and most non-unionized federally regulated (non-managerial) employees. Most unionized employees are protected by collective agreements making it impossible to fire them in the absence of just cause. Similarly, non-unionized federally regulated (non-managerial) employees, in the private sector, who have been employed for a year or more, are protected by Section 240 the Canada Labour Code which requires the employer to show that their dismissal is “just.” As a unionized CBC employee, Jian Ghomeshi is one of a small minority of Canadians who falls into this second category of people who cannot be terminated except for just cause.
Employees within this second category can only be terminated, on the grounds of sexual behaviour, in three extreme situations:
(i) where their behaviour spills over into the workplace, significantly damaging workplace relations'
(ii) where it has no impact on the workplace but involves some serious criminal offence
(iii) where it falls short of a criminal offence but nonetheless harms the employer’s public reputation or commercial "brand."
An example of the latter two situations is provided by the court decision in Kelly v. Linamar Corporation, where a judge held that the employer had just cause for firing an employee who was caught downloading child porn in the privacy of his own home (a serious criminal offense), and whose actions were subsequently reported publicly in the media, thereby damaging the employer’s public reputation.
Ghomeshi’s sexual behaviour is alleged to have overlapped all three of these situations; it is alleged to have included sexually aggressive statements to a subordinate on his show while at work, to have involved the criminal offence of sexual assault, and to have damaged the public reputation of his program “Q”, and of the CBC’s “brand’.
In order to win a wrongful dismissal grievance against the CBC, Ghomeshi would therefore have to do more than just prove that he never sexually harassed a female subordinate on the set of “Q”, or that the women whom he dated actually consented to being physically assaulted. He will also have to persuade an arbitrator that his admitted appetite for violent forms of sex – even if consensual and confined to the privacy of his own home – could not reasonably be expected to do serious harm to the CBC’s reputation and brand. Ultimately, this third hurdle may ultimately prove to be just as difficult for him to overcome as the first two.
3. Employees who can be immediately terminated for their private extra-curricular sexual behaviour, no matter what the circumstances:
This third category includes all employees who do not fall into either of the first two categories – namely all private sector, heterosexual, provincially-regulated, non-unionized employees. This group comprises an overwhelming majority of Ontario’s workforce. If their employers can establish that their extra-curricular sexual behaviour was non-consensual and therefore criminal, or that such behaviour was highly damaging to the employer’s public reputation or brand, then those employers can immediately terminate these employees for just cause and without notice or pay in lieu of notice.
If an employer cannot establish any of these three things, it can still terminate employees who fall into this third category so long as it provides them with pay in lieu of notice. If the employment agreement contains a well- drafted termination clause, this can often amount to only a few weeks’ salary.
Essentially this means that an employer who provides pay in lieu of notice can freely dismiss this third category of employees for sexual behaviour which it disapproves of, even if that behaviour occurred offsite and had absolutely no impact on work performance or the employer’s reputation. It can do so for no better reason than it finds the employee’s behaviour to be personally distasteful or inimical to its own conservative social values.
Employees can be terminated in this way simply because they frequented strip joints on their lunch hours, or joined ‘swinger clubs’, or attended Saturday night ‘cross-dressing parties with which the employer personally disapproved.
On this narrow legal issue, Ontario employment law therefore remains far more antiquated and puritanical than many HR experts currently assume it to be. In this sense, the sexual revolution of the 1960s, and Prime Minister Trudeau’s progressive policy statements of half a century ago, have had surprisingly little impact on the legal rights of most employers and employees.
Alan Riddell and Kyle Van Schie are Ottawa lawyers who specialize in labour and employment law and who work at the law firm of Soloway Wright LLP.
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