Love is in the air as February 14 draws near, but love can also be a battlefield. Valentine’s Day may present legal woes for employers with “affectionate” (and potentially sexually harassing) employees who use this occasion to express unrequited and unwelcome desires to co-workers and subordinates. What may seem like innocent Valentine’s Day behavior of gifting cards, flowers, or chocolates could be misconstrued as evidence of unwanted sexual advances.
Title VII of the Civil Rights Act of 1964 (and many state laws) prohibits sexual harassment in the workplace. Sexual harassment comes in two forms. The first involves a supervisor seeking sexual favors from a subordinate in exchange for giving favorable treatment (or withholding adverse treatment) regarding the employee’s terms or conditions of employment. The second involves sex related conduct, such as comments, pictures, dirty jokes, etc. that do not involve a quid pro quo but which make the workplace a hostile environment.
The best practice for preventing liability this Valentine’s Day is through preventative measures that start with a company “anti-harassment” policy. Employers who adopt and enforce well thought-out anti-harassment policies, including procedures for reporting prohibited conduct, are better positioned to prevent, respond to, and deal with sexual harassment issues that may arise.
Well-written policies provide examples of the types of conduct that is prohibited — without making the mistake of stating “X is sexual harassment.” Good policies also refer employees to personnel who are properly trained to, and actually can and will, respond quickly to a complaint.
Welcome complaints
An employee’s internal complaint is a gift. An internal complaint is an opportunity for management to address a potential liability before an employee feels compelled to seek help from the EEOC, a lawyer, a union, etc.
The best policies encourage employees to report issues and offer at least two reporting options, at least one of which is a human resources professional or a member of upper management who is trained to handle these issues properly. Employers who simply direct employees to bring complaints to their immediate supervisor are taking risks. First level supervisors often are not sufficiently trained and prepared to respond appropriately, and if the supervisor is the alleged harasser the employee may feel he or she cannot complain. A well drafted policy will, of course, prohibit retaliation against employees who report harassment.
Policies are the first step, but not the only step. To get the most out of any policy, employers train employees to understand and follow the policy. Supervisors should be well trained to understand the sexual harassment policy, recognize potential violations, avoid inviting harassment claims, and properly respond to complaints. Most importantly, perhaps, supervisors should be required to report all complaints and potential violations to the human resources department or upper management.
Not only is employee sexual harassment training a best practice, depending on where your business is located it may be mandatory to provide sexual harassment training. In the wake of the #MeToo movement, states and municipalities have and continue to enact sexual harassment prevention legislation requiring employer training. In 2018, California expanded its requirement that covered employers must train all employees, not just supervisory employees. Additionally, Delaware, the District of Columbia, New York State and New York City have passed laws with specific training requirements. In 2019, more states followed suit with Connecticut expanding its training requirements requiring covered employers to provide two hours of training to all employees. Illinois and Washington have also passed new laws with specific training requirements.
Consensual relationships
So, what happens when there are consensual relationships in the workplace?
Some companies try to completely avoid any romance in the workplace by implementing strict “no dating” policies. These policies can be awkward, if not impossible to enforce and can introduce negativity into the company culture. With studies showing that a third or more of workers have dated a co-worker, these types of policies are just unrealistic to prevent all workplace romance simply by publishing a “no dating” policy. There are, however, guidelines such as a fraternization policy or “cupid contract” that mitigate the risks inherent with workplace romances.
An effective policy typically strongly discourages all intimate workplace relationships, encourages employees to report such relationships to human resources, and expressly requires supervisors either to avoid such relationships or report them to human resources. Supervisors are held to a higher standard because intimate relations between a supervisor and a subordinate pose the greatest legal risk to the employer.
What happens if the relationship ends?
A scorned lover may claim the relationship was never consensual but was actually sexual harassment. If one party to the relationship was the other’s supervisor, the subordinate may claim the relationship was never consensual and was, in fact sexual harassment all along. The subordinate also may claim any subsequent adverse employment action was taken in retaliation for ending the relationship. A fraternization policy aims to address such issues before they arise.
Requiring the supervisor to immediately disclose the relationship at the outset has two benefits:
First, if the supervisor fails to disclose the relationship, that is an independent legitimate ground for disciplining or terminating the supervisor if the relationship leads to harassment claims.
Second, if the supervisor reports the relationship the employer has the opportunity to prevent the supervisor and the employee from working together in a direct reporting relationship. The employer also has an opportunity to ask the subordinate employee whether the relationship really is consensual. If it is, the employee can be asked to enter into a “Cupid contract” which is a written document in which both employees acknowledge that they are engaged in a consensual relationship. Each employee also acknowledges that the other employee’s conduct is welcomed and that if the other employee’s conduct ever becomes unwelcome, or the relationship ends, the employees will promptly notify the employer.
The policy should also address romances between employees of equal rank. Good policies caution against public displays of affection at work and warn that the participating employees may be disciplined or terminated if the relationship disrupts the work environment.
If your company has already taken these relatively simple precautions, sending all employees a reminder of your policies can help avoid getting caught in Cupid’s crossfire this Valentine’s Day season. If your company has not taken these precautions, getting started immediately could help save you some heartache