Jian Ghomeshi: Did the CBC cross the line as an employer?

By now, everyone in Canada - and likely beyond - knows the story of Jian Ghomeshi.

Understandably, his story has exploded in social and conventional media. While Canadians may not see as many sex scandals as Americans or Europeans, we seem to crave the TMZ-worthy details just as much as anyone else.

But that’s not the real issue here. Not remotely close. Until every last detail - from Ghomeshi’s perspective, as well as those of the women whose allegations turned a simple low-grade-celebrity story into the most intense media flameout in recent memory - is shared, vetted and either proven or disproven, all this is little more than a game of high-profile, high-stakes he-said, she-said. May as well let the TMZs of the world have their fun.

At issue is whether employers have the right to make decisions that affect employees’ careers based on their conduct outside the workplace, and who’s accountable if companies elect to terminate employees based on those activities.

Even at this early stage, the Ghomeshi case illustrates just how quickly the landscape is changing, and why companies of all sizes and types need to change their ways.

“Companies need to be aware that the distinction between personal life and work life is getting blurred," Lior Samfiru, a partner in employment and labour law with Samfiru Tumarkin LLP, tells Yahoo Canada Finance.

"What one does in his or her private time, may well impact the employer. This is especially true for someone who has a very public job. If Mr. Ghomeshi’s off air conduct impacts his ability to do his job or makes listeners less likely to listen to his show, this impacts his employer and the employer should be taking appropriate action, in that case.”

Quicker action needed

However the Ghomeshi case ultimately plays out, it’s already ignited a polarizing national debate over how far is too far, and what role employers must play when unsavory allegations emerge. It’s clear they need to do more to identify problems that may impact the workplace, and they need to do it earlier.

“Once the fire is burning, it is usually too late to do something effective,” Samfiru says. “The key is to prevent the fire from burning in the first place. Employers need to take any allegations of harassment very seriously, even if the conduct took place off hours. They need to investigate and take appropriate remedial action right away.”

Samfiru says inaction isn’t acceptable when major issues, especially those involving harassment, abuse, bullying or creating a toxic work environment, bubble to the surface.

“An employer will rarely be blamed for taking too harsh a stand in trying to protect its employees,” he said. “On the other hand, if the employer does not take strong enough action, it can be liable for any issues or losses that result from its failure to take appropriate action.

"An employer must protect its employees,” he added. “This may mean removing from the workplace someone who may be a danger to other employees. The removal may be temporary, such as a suspension, so as to allow the true facts to come into light.”

No choice

From the CBC’s perspective, Ghomeshi wasn’t just an employee. He was a sub-brand in his own right, and an integral part of the broadcaster’s efforts to appeal to a younger demographic. So it’s fair to assume that the CBC might have felt it had no choice but to protect its own brand if Ghomeshi’s went down in flames.

If you’re a national broadcast personality, your employer may not be able to tell you what you may or may not do in the privacy of your bedroom, but it can certainly act to protect its position if it feels those activities can come back to haunt it in some brand-eroding manner.

It’s no different than the NFL and its member teams sanctioning, suspending and even firing players who abuse their significant others and otherwise threaten damage to the league’s already tarnished reputation.

Can’t afford to lose

In this case, the CBC, already reeling from continued federal budget cuts, losing the NHL rights to Rogers and often-venomous public debate over where it goes next, can’t afford to be perceived as passive in what may become a flashpoint for an escalating national debate on violence against women.

But it isn’t just broadcasters and sports teams who feel compelled to act. The Ghomeshi mess sets a precedent for organizations of any stripe to pull the trigger first if they feel their interests are threatened by the actions - in-office, out-of-office or anywhere in between - of an employee. And that employees need not be a quarterback or a broadcaster. It could be anyone, at any level.

The Ghomeshi case is merely a catalyst for setting publicly acceptable limits over how deeply companies can - or should - probe into the private lives of their employees, and the costs to their brand when behavioural lines are crossed.

Once we’re all finished debating the merits of Ghomeshi’s apparently BDSM-friendly lifestyle, the debate over how the rules are set to protect corporate interests without violating individuals’ private interests will continue to rage. The minefield for companies hoping to avoid similar disasters only gets more treacherous from here.