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

A routine moment of crowdwork at a Coldplay concert went viral when a couple tried to avoid the spotlight after they were caught hugging on the jumbotron. Internet sleuths quickly figured out that they were chief executive Andy Byron and chief people officer Kristin Cabot of a little-known tech company called Astronomer. Photo by Grace Springer via Storyful

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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.

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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.

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None of this is reflective of Canadian law today.

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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.

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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.

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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.

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But does the apparent affair between the CEO and HR head qualify as harassment, which therefore must be investigated?

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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.).

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“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”