Harassment is a type of employment discrimination involving unwanted, inappropriate requests for sexual favors made by a supervisor to an employee. Or, employees in a workplace may, through their language and conduct, create a hostile environment in the workplace. While workplace relationships do not necessarily constitute sexual harassment, they could, especially those of a romantic nature, give rise to claims of harassment.
Some of the ways in which a workplace relationship might lead to legal liability are as follows:
- Sexual Harassment Claims: Workplace relationships, particularly those between a supervisor and a subordinate, may cause employers to be subject to claims of sexual harassment. It is easy to imagine that even consensual romantic relationships that end badly could result in a spurned employee claiming that the relationship was coercive. Of course, one of the parties could target their former partner for harassment and humiliation out of spite;
- Hostile Work Environment Claims: Other employees could claim that a hostile work environment has resulted if the workplace relationship results in pervasive negative verbal or physical conduct in the workplace;
- Conflict of Interest Claims: Workplace relationships can lead to favoritism, so that favorable opportunities, perquisites, and benefits get allocated unfairly. Those who feel that they may have earned advancement and other rewards through legitimate effort rather than a personal relationship with a supervisor and favoritism might claim discrimination.
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 consistently enforced. The policies most often used are:
- Complete Ban on Relationships: A complete ban on workplace dating relationships prohibits dating between any two employees. While this policy might seem the most straightforward, there can be problems with enforcing it and responding to violations. In addition, in some states, a complete ban may violate the employees’ right to privacy;
- Partial Ban: A partial ban on dating among employees in a workplace prohibits dating between supervisors and subordinates. It also prohibits executive members, such as CEOs, from dating any employee of the company;
- Documentation and Management: A “documentation and management” policy requires employees to inform their immediate supervisors or their human resources department of workplace relationships. Some employers require their employees to sign a document stating that the relationship is consensual and that they understand the employer’s discrimination and harassment policies. The employer then may monitor the situation to ensure that there is no abuse of power or favoritism.
- Some might find such a policy difficult to enforce. It leads to questions such as at what point a relationship becomes one that must be reported, and then whether and at what point its demise must be reported as well. Tracking the vagaries of employees’ romantic relationships could become fraught with a multitude of difficulties. If supervisors must question employees about the course of their romances, this might become the problem rather than the solution;
- Discrimination and Harassment Policy Only: Employers could completely ignore workplace relationships as long as they do not interfere with work. However, not having any policy regarding dating does not exempt the employer from maintaining and enforcing workplace discrimination and harassment policies. Implementation and enforcement of policies can include annual sexual harassment awareness training, which may be mandated by state employment law.
- Effective Enforcement of Policies against Sexual Harassment: It is recommended that employers adoptl harassment policies that describe in detail the conduct that is prohibited. It is not adequate to set a policy. Clear procedures for enforcement of the policy is equally essential. Employers must communicate to employees how complaints are investigated and the rules enforced. Enforcement must be consistent.
- One way to ensure enforcement is to communicate to employees that there are procedures for making complaints of sexual harassment. It is not a good idea to have all complaints directed to only one supervisor. That supervisor might be the offender. So having more than one reporting procedure and multiple checks on responses to reporting is a better idea.
- Then, employers want to have in place procedures for investigating complaints and taking corrective action. Some experts think that having procedures for reporting that are anonymous is preferred. Finally, training supervisors in recognizing the warning signs can strengthen the enforcement of sexual harassment policies.
What Kind of Dating Policy Can I Use?
Employers should communicate a clear dating policy to employees as a way to legal issues of discrimination and harassment. The policies most often used are:
- Complete Ban: Dating is completely prohibited. While this may seem to be the clearest solution, it may not be realistic. Employees will probably date surreptitiously despite the ban. This leads to enforcement problems. This policy also raises questions about discrimination when a relationship is discovered. For example, is there any guarantee that the policy is enforced equally among all workers: Enforcement might be based on accidental discovery of relationships, which would lead to unequal enforcement;
- Partial Ban: With a partial ban, dating is permitted, but not between regular employees and supervisors. Executive staff, e.g. CEOs, CFOs, etc., are prohibited from dating anyone in the employ of the company.
- Ignore It: The employer can ignore these kinds of relationships entirely as long as they do not interfere with work. However, an employer still must have some kind of discrimination and sexual harassment policy in place, even though they choose not to regulate dating.
- Documentation and Management: In this policy scenario, employees who are “dating” are required to disclose their relationship to the employer, possibly through the human resources department. After reporting, they may then be required to sign a document to the effect that the relationship is consensual and that both employees understand the sex discrimination and harassment policy of the employer.
- This policy might arguably allow the company to control certain conduct in the workplace, such as public displays of affection. But maintaining a company romance registry also seems to present significant challenges.
The “right” dating policy depends on what is best for a given business and its employees. If an employer is having trouble finding the right policy, then it may be helpful to consult an employment lawyer to figure out which policy best fits the circumstances of a particular business.
What Are the Potential Problems with Workplace Romances?
Workplace romances may end well. Unfortunately, some of them do notl. Workplace romances can:
- Complicate the office environment, confusing work relationships with personal relationships;
- Become a distraction;
- Create accusations of favoritism;
- Create jealousy among employees;
- Cause allegations of sexual harassment.
Can an Office Romance Be Sexual Harassment?
It is certainly possible for an office romance to develop into sexual harassment, but it depends on the circumstances and is not the necessary course of events. Harassment involves inappropriate and unwanted conduct, or conduct that creates a hostile environment in the workplace.
It is possible for a workplace romance to become harassment when the following takes place:
- One of the people involved claims sexual harassment;
- One of the parties or other employees claim conflict of interest in employment decisions;
- One of the parties to the romance or other workers claim that a hostile work environment exists.
What Can I Do to Avoid Liability for My Employees’ Workplace Romances?
An anti-dating policy could prevent employers from being liable for harassment that arises from their employees’ office romances. Employers always have the option of establishing a policy that does the following:
- Completely bans workplace romantic relationships.
- Partially bans workplace romance relationships. An example of this would be a ban that prohibits dating between subordinates and supervisors and executives;
- Only addresses harassment and discrimination in the workplace, while not addressing workplace romances per se;
- Requires employees to document their workplace romance. This requires informing their supervisors or human resource department about the romantic relationship and may include signing agreements as noted above.
Whatever policies the company chooses, it should probably extend beyond relationships between coworkers and apply as well to worker-vendor, worker-client, and worker-contractor relationships.
Why Are Workplace Harassment Laws So Serious?
Anti-harassment laws clearly proscribe certain conduct in the workplace. This is because in the past, harassment claims tended to go unreported by employees who fear retaliation by a boss or another worker. For instance, a worker might feel fearful about reporting harassment if their boss or supervisor threatens to fire them for doing so. However, harassment can cause serious injury to a person. It is also against the law, and therefore should not be ignored or overlooked.
Firing an employee for filing a harassment claim is illegal under federal employment laws as well the law in most states. So, a sure way to invite legal problems is to fire an employee for filing a harassment claim with the government. This is so, even if the claim turns out to be false. However, federal and state laws also protect employers from false sexual harassment claims.
Should I Terminate an Employee after an Incident of Sexual Harassment?
An employer should make a full investigation if either of the following two situations come to their attention:
- An employee complains to the employer about sexual harassment;
- The employer discovers sexual harassment.
Until an employer has made a full investigation, they should avoid taking any official actions.
Of course if an employee observes one person hitting, raping, or attempting to hit or rape another person. In that case, of course, the police should be called, because those acts qualify as criminal conduct. In any situation in which a person witnesses a crime in progress, the person should call the police immediately.
If a person punishes an employee too soon and without an accurate picture of the situation, they run the risk of inviting a lawsuit claiming retaliation. Employers should be cautioned that retaliation suits are easier to prove than regular discrimination lawsuits. A possible solution is to separate the employees in question, possibly reassigning one or both. An employer would want to ensure that the separation is not inconvenient to their current job performance. It is always important to determine 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, you may want to consult with an sexual harassment lawyer. They can assist you in creating a workplace romance policy that fits your company’s needs and in devising enforcement procedures