Do you have the right to dismiss your sexually experimental staff members?

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Since Sunday, mainstream media has been awash with the news that Jian Ghomeshi lost his job as a result of “unbecoming” sexual behaviour but as no official complaints have yet been filed is it really fair, or for that matter legal, for CBC to dismiss the long-time radio host? Leading employment lawyers think so…

Stuart Rudner, founding partner of Rudner MacDonald LLP, acknowledged that while an employee’s personal life is generally none of their employer’s business, there are certainly some exceptions to the rule.

According to Rudner, employers have the right to discipline or punish employees for off-duty conduct if the activity has a negative impact on the employer or business.  Unfortunately for Ghomeshi, media personalities who operate in the public stratosphere are particularly susceptible to this exception.

“The bottom line is that off-duty conduct can, in the right circumstances, warrant summary dismissal. Even where it does not, employers will usually have the right to dismiss the employee on a without cause basis by providing notice and/or severance pay,” writes Rudner.

Howard Levitt, senior partner of Levitt & Grossman LLP, agrees; “Even if Ghomeshi can prove all the alleged sexual scandals he’s accused of were entirely consensual, he likely has no case: If the activities were viewed as being so outside the norms and tastes of CBC listeners, he will likely not be reinstated, since doing so could hurt CBC listenership.”

The lines become even more blurred when we consider CBC is a state sponsored corporation, so reinstating a publically disgraces presenter would be going against the interests of both the stakeholders and the consumers.

While it hasn’t yet been disclosed if Ghomeshi received severance pay or not, the $55 million lawsuit he’s launched has been widely publicized. Brian Radnoff, commercial litigation and defamation lawyer with Lerners LLP, told the Star that the lawsuit seems much more like publicity stunt than a serious legal challenge.

For starters, said Radnoff, the legal document opens with a quote from former Prime Minister Pierre Elliott Trudeau: “There is no place for the state in the bedrooms of the nation.”

It might be both pithy and witty but, in Radnoff’s opinion, and ours, it’s hardly appropriate. What do you think? 

  • Bruce on 2014-10-28 2:46:46 PM

    I would venture to guess that a significant proportion of CBC listenership and viewership is of a certain demographic. Had the revelations been that the host was gay and maybe seen frequenting a location for the gay community any dismissal would be met with vehement opposition and seen as anti-gay or gay bashing. Show us the difference just because this action does not fall within a "politically incorrect" category.

  • Brian on 2014-10-28 2:52:34 PM

    A few years ago the host of CBC's DNTO starred in a sexually explicit movie (Short Bus) and although the CBC threatened to fire her they backed down...

  • Batgrrl on 2014-10-28 3:12:35 PM

    Its a bad day for Jian- but I support CBC in that company reputation needs to be considred especially when you are on air talent. The life of a celebrity is a tough path to walk. And I bet there is far more to the story.

  • HRProfessional on 2014-10-28 4:17:57 PM

    How one behaves in the privacy of their home does not belong in the public. Since the allegations were not brought to the local authorities attention for an investigation, really questions the intentions of the parties involved. In essence, we shot first and didn't ask questions. Hardly seems fair.

  • George Kairys on 2014-10-28 4:24:29 PM

    Trudeau was/is right! What two consenting adults do is their business. If someone has been harmed here where are the criminal charges instead of innuendo and red letter publicity?

  • HRProfessional on 2014-10-28 4:27:11 PM

    I agree with Brian. If something happened in the bedroom that was deemed illegal, why isn't this brought to the proper authorities (Police) for an investigation. The fact it was not reported as a crime really questions the intentions of the involved parties that lodged the accusations publicly. I believe CBC acted inappropriately . Regardless if you are on air talent, everyone deserves their privacy especially if a crime has not been reported. Please don't tell me the ladies were too embarrassed. They had no problem bringing it out publicly. This is unfortunate and unfortunately public figures must be very careful as privacy is not always respected.

  • Larry Dawson on 2014-10-28 5:05:09 PM

    Celebrities especially who trade on their public personae for personal or sexual gratification have to know the risks that they incur. No free lunch - if BDSM is your schtick, maybe look for other work than a talk show host. and his lawsuit? Pure PR. He's a unionized employee, so the suit will be summarily dismissed. Only a grievance can contemplate his damages.

  • Ted on 2014-10-29 4:41:13 AM

    I'm a little surprised that this would not fall under Ontario's Human Rights Commission's rulings on discrimination or harassment on sexual orientation (multisexual?) grounds.

    Possibly, because he is a Federal employee, he might be covered under Federal legislation but the Supreme Court did rule that discriminating on sexual orientation grounds is illegal (

    If the counter argument (and I actually don't know what heinous acts he committed) is that the restrictions were dropped for lesbians and gays only, that opens a whole new can of worms. What about transexuals and all other forms of gratification? Who is qualified to draw the line?

    Trudeau was a wise man in taking the stand he did. Pity we don't have a leader anywhere near his stature in the wings but at least Justin may learn, unlike the current seat-warmer.

  • Lynn on 2014-10-29 11:48:31 AM

    I am not sure this is an appropriate application of the thresholds for off duty conduct that warrants dismissal as defined in the Basara vs. Deputy Head (Correctional Services of Canada) outcomes. The CBC is not basing this off of a serious criminal conviction, deceit on the part of the employee (Ghomeshi was overly forth coming, in my opinion), the impact does not affect Ghomeshi's capacity to carry out his job, or was the reputation of the CBC so impacted that it would be impossible for Ghomeshi to do his job. Of course, we still have details to learn here, new details may change opinions and outcomes. As of today, there are no criminal charges, the employee has been very cooperative, and there are many assumptions being made about the "open mindedness" of CBC listeners. I, like you, await fact based data to base my opinion on but based on what we know now; I suggest that the CBC free their mind and the rest will follow. This is discriminatory.

  • Lynn on 2014-12-01 3:31:43 PM

    So, now we learn that Mr Ghomeshi has been criminally charged. It will be interesting to see if he is in fact convicted of these charges. I still stand behind my initial comment, however, I would believe that CBC had more information than what was made available to the public. The fact that Mr. Ghomeshi has now withdrawn his suit against CBC and will be compensating the broadcaster the tune of $18,000 for legal fees speaks volumes. It will be interesting to see what we learn as this goes through the courts and what the precedent is as it relates to the termination of his employment.

  • Larry Dawson on 2014-12-02 4:00:30 PM

    This isn't a human rights/sexual orientation case, it's assault, criminal assault, and overcoming resistance to an attack by choking. "Privacy of the bedroom" is not a defense to punching someone's lights out then choking them into sex acts, nor is claiming a religious exemption, which he hasn't done yet but may be the next tactic.

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