Harassment is a type of employment discrimination involving unwanted, inappropriate, or hostile behavior in the workplace. While workplace relationships are not considered harassment per se, it is possible for workplace relationships, especially ones of a romantic nature, to lead to situations that give rise to harassment claims. There are a few common ways that a workplace relationship can create liability:
- Sexual Harassment Claims: Workplace relationships, particularly those between a supervisor and a subordinate, expose employers to claims of sexual harassment. Voluntary romantic relationships that end badly could result in a spurned employee claiming that the relationship was actually the result of coercion or targeting their former partner for harassment and humiliation out of spite.
- Hostile Work Environment Claims: Other employees could file a claim for hostile work environment if the workplace relationship results in pervasive verbal or physical sexual behavior in the workplace.
- Conflict of Interest Claims: Workplace relationships often lead to favoritism – work, opportunities, perks, and benefits being allocated inappropriately or unfairly.
How Can Employers Avoid Liability for Workplace Relationships?
Explicit, company-wide dating policies should prevent most of these problems, as long as they are clear and uniformly enforced. The policies most often used are:
- Complete Ban: A complete ban on workplace relationships prohibits dating between any two employees. While this policy might seem the most straightforward, it does pose enforcement problems as well as the issue of how violations will be disciplined.
- Partial Ban: A partial ban on workplace relationships only prohibits dating between supervisors and subordinates, and prohibits executive members, such as CEOs, from dating anyone in the workplace.
- Documentation and Management: A documentation and management policy requires employees to disclose workplace relationships to their supervisors or human resources department. The employees are typically required to sign a document stating that the relationship is consensual and that they understand the applicable workplace discrimination and harassment policies. The employer then conducts some degree of monitoring to ensure that there is no abuse of power or favoritism.
- Discrimination and Harassment Policy Only: Employers also have the option to ignore workplace relationships altogether, as long as they do not interfere with work. However, declining to utilize a dating policy does not exempt the employer from maintaining and enforcing workplace discrimination and harassment policies.
These policies may also include annual sexual harassment awareness training, some of which may be mandated by state employment law.
What Kind of Dating Policy Can I Use?
Employers should create an explicit dating policy to avoid legal headaches down the road. The policies most often used are:
- Complete Ban: Dating is completely prohibited. Although this is the most straightforward solution, many employees will try to date despite the ban. Using this policy creates a lot of enforcement problems and can hurt morale in the office. This policy also raises questions about discrimination when a relationship is discovered. For example, is the policy enforced equally against men and women, hetero and homosexuals?
- Partial Ban: Dating is permitted, but not between regular employees and supervisors. Executive members (CEOs, CFOs, etc.) are prohibited from dating anyone in the office.
- Ignore It: The employer can ignore these kinds of relationships entirely as long as they don’t interfere with work. However, the employer must have some kind of discrimination and harassment policy in place, even though they choose not to regulate dating.
- Documentation and Management: The employees dating are required to disclose the relationship to the employer (or the human resources department). They may be required to sign a document stating that the relationship is consensual and that both employees understand the sex discrimination and harassment policy of the employer. This policy allows the company to control certain conduct in the workplace, such as public displays of affection.
The "right" dating policy depends on what is best for your business and employees. If you're having trouble deciding, then it's best to consult an employment lawyer to figure out which policy would be best for your business model.
What are the Potential Problems with Workplace Romances?
Workplace romances may end well. Unfortunately, some of them do not end well. Workplace romances can:
- Complicate the office environment
- Become a distraction
- Create accusations of favoritism
- Create jealousy among employees
- Cause allegations of sexual harassment
Can an Office Romance Be Sexual Harassment?
Yes, but it depends on the circumstances. Harassment involves inappropriate, unwanted, or hostile conduct in the workplace. It is possible for a workplace romance to become harassment when there are:
- Sexual harassment claims
- Conflict of interest claims
- Hostile work environment claims
What Can I Do to Avoid Liability for My Employees' Workplace Romances?
An anti-dating policy should prevent employers from being liable for their employees’ office romances. Employers always have the option to create a policy to:
- Completely ban workplace romantic relationships.
- Partially ban workplace romance relationships. An example of this would be a ban that prohibits dating between subordinates and supervisors/executives.
- Only address harassment and discrimination in the workplace, while ignoring workplace romances.
- Require employees document their workplace romance. This requires informing their supervisors or human resource department about the romantic relationship.
Why are Workplace Harassment Laws So Serious?
Anti-harassment laws tend to be somewhat strict when it comes to workplace standards. This is because in the past, harassment claims tended to go unreported due to a fear of retaliation by a boss or another worker. For instance, the worker might feel pressure not to report an instance of harassment if their boss or supervisor threatens to fire them for reporting a violation. However, harassment can cause serious damage to a person and should not be ignored or overlooked.
Currently, firing an employee for filing a harassment claim is illegal under employment laws. This is called "retaliatory discharge" or "retaliatory firing" and is considered to be illegal. This means that an employee today cannot be fired for filing a harassment claim with the government, even if the claim turns out to be false. However, laws also protect employers from being victims of false sexual harassment claims.
Should I Terminate an Employee after an Incident of Sexual Harassment?
Make a full investigation if:
- An employee complains about sexual harassment
- You discover sexual harassment
Until you’ve made a full investigation, avoid making any official actions.
The only exception is if one person hits, rapes, or attempts to hit or rape another person. In that case, call the police. If you punish an employee too soon and without an accurate picture of the situation, you could face retaliation lawsuit. Employers should be forewarned that retaliation suits are much easier to prove than regular discrimination lawsuits. Separate the employees in question, but make sure the separation is not inconvenient to their current job performance. Make sure you determine exactly who the harasser is before punishing anyone.
Do I Need a Lawyer to Help Me Create a Workplace Romance Policy?
If you want to understand more about avoiding liability for workplace romances and creating an effective policy, contact an employment lawyer. They can assist you in creating a workplace romance policy that fits your company’s needs and assist you in enforcing that policy.