Saturday, May 05, 2007

Grey’s Anatomy or Sex and the Hospital

Presumably we are all supposed to be amused by the double entendre of the famed textbook together with the actual anatomy of character Meredith Grey. The television show is largely about workplace relationships and workplace sex. Where Sex and the City was about young women being beautiful, wearing Manolos and having sex, Grey’s is about becoming a superstar surgeon and grappling with sex and relationships at work. The show features shots of Seattle’s Space Needle about as often as we saw the Chrysler Building in SATC’s New York – the directors thinking that if the sex wasn’t obvious enough, gratuitous shots of phallic symbols would help out. (Perhaps these two shows are philosophically distinguished on the basis that the former was about being and the latter becoming). Every character in Grey’s, except for Miranda Bailey, is involved with someone at work. They are involved with each other, with each other’s partners and with their patients.

Generally workplace romances are probably a bad idea. Perhaps this point gets made in Grey’s where all of the relationships are problematic except for Bailey’s and it is to Bailey the others turn when they need real relationship advice. The point is being made ongoingly in Boston Legal where, a few episodes back, the firm asked partners Brad Chase and Julie Bowen to sign a "love contract". Love contracts are a means for the employer to limit its liability when employees enter into a relationship. What kind of liability? The primary concern will be sexual harassment. There are others, conflicts of interest, favouritism, nepotism, confidentiality, insubordination, work efficiency (competence) constructive dismissal. The parties to the contract agree that the relationship is consensual and that the company will not be liable for claims that arise out of the relationship. Of course, one problem with this is not all claims that arise out of the relationship will come from the parties to the relationship.

The law in Canada regarding such relationships can be found in the Human Rights Code regarding sexual harassment (s.7) and nepotism (s.24) (it is expressly allowed). Where it is more tricky is the other areas which are found in the common law. In Dooley v. C.N. Weber, Mr. Dooley was fired for having relationships with his coworkers and subordinates. Given that no one had complained, the court had to consider the nature of consensual relationships in the office; reyling on the decision in Reilly v. Steelecase:
"there has been a social revolution of enormous proportions.
One need only to look at the Divorce Act, 1968 (Can., c.
24,) and the Family Law Reform Act, 1978 (Ont.) c. 2, to
realize the gulf that separates current thinking with
respect to personal and social relationships that are
acceptable today with those that were acceptable in the
society of 60 to 100 years ago.”
Even though the company had expressly warned Dooley not to have workplace relationships, the court held that the dismissal was wrongful on the basis that tolerance for such things in society has changed.

While I agree with the result in the case I disagree with the reasons. There may be many reasons why complaints aren’t made. The participants may be frightened, they may not want to expose the relationship any further for personal reasons. The issue here should have been whether or not Mr. Dooley could be fired for violating a company policy or "love contract". There is no reason why the company could not have such a policy or contract – except for the law that governs the enforceability of policies and contracts. A change in the terms and conditions of employment can be enforced if it is something that was contemplated within the terms of the original contract, and if not, if it meets the law of contract. This means that additional consideration must be provided. An employer cannot unilaterally change the terms of the contract without providing additional consideration, i.e. payment for that change. The "love contract" was forced on Mr. Dooley without any further consideration. Thus, it was not valid.

In Grey’s, it is pretty clear that there are no love contracts. It is also clear that the relationships are causing problems at work. Conflict of interest: Christina did not disclose (until later) that Burke was having hand tremors and was incapable of performing surgery. Burke on the other hand used extremely bad judgment in allowing (read forcing) his subordinate to cover for him. O’Malley married his superior Cali Torres, and though there have been no incidents between them, the work relationship between Cali and O’Malley’s friend and one night lover, Izzy Stevens is proving to be extremely problematic. In the last episode, both O’Malley and Burke were hiding in the clinic (funded by dead patient and love interest of Izzy) , i.e. not working, in order to deal with relationship issues, and both wanted to take Dr. Bailey away from her work to discuss those issues. Extreme bad judgement, of course, is used when Izzy endangers the life of her boyfriend by cutting the cord to his life support system in order to get him a new heart. He dies and leaves her a lot of money. That’s very nice. Except, what happened to the other person who was waiting for the heart? One assumes that there would be lawsuit waiting there. And then what of all that, what appears to be, unprotected sex in the staff sleep room? I see no reason why a claim against the hospital, as an employer, would not include the damage suffered from an STD.

The point of the love contract is to recognize that individual judgment gets compromised in relationship. One does not make rational decisions – or the rationale includes factors that are unnecessarily there. Bad judgement and bad decisions lead to lawsuits.

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