Office romance can lead to sexual harassment and retaliation claims, employment lawyers say
On the eve of Valentine's Day, love is in the air, but HR leaders must be wary if it’s also in the office.
Three quarters of employees say they’ve had a romantic relationship with a colleague, and 59% say they’ve had sex with a colleague, according to a recent survey from LiveCareer.
Of course, given the amount of time people spend at work, it’s not unusual for colleagues to become romantically linked. Sometimes, those relationships may even lead to marriage.
But here’s where HR leaders may start to sweat: 75% say there’s nothing wrong with dating your colleagues and 71% say there’s nothing wrong with dating your manager, according to the survey.
The latter statistic raises a red flag following the #MeToo movement, in which high-profile leaders, particularly in the entertainment industry, were accused of sexual abuse and harassment and subsequently removed from their positions.
Office romance opens the door for potential claims of sexual harassment, which constitutes unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of sexual nature that implicitly affects an individual’s employment, unreasonably interferes with their work performance or creates an intimidating, hostile or offensive work environment.
“The key part is that it must be unwelcome,” says employment lawyer Ted Hollis, partner at national law firm Quarles, which has an office in San Diego. “A relationship that starts as welcome to both parties may at some point devolve into one breaking it off and the other being unwilling to accept that to the point that their actions become unwelcome. In the case of a supervisor and subordinate, maybe the supervisor believes its welcome, but the subordinate feels forced into a relationship to protect themselves from adverse action at work.”
In addition to sexual harassment, dalliances between supervisors and subordinates may lead to issues of retaliation, favoritism or at least perceived favoritism, says Dana Kravetz, managing partner at national law firm Michelman & Robinson, LLP, which is headquartered in Los Angeles.
“More relationships than not end in breakup,” Kravetz told HRD. “Let’s say an employee post-relationship doesn’t get the promotion they thought they’d get. They could claim retaliation for breaking up with the boss.”
Hollis advises every company to have an anti-harassment policy that says an unwelcome hostile environment or quid pro quo based on sex is forbidden and will result in disciplinary action.
But in terms of an anti-fraternization policy, Hollis says, companies are all over the board. While some have no policy, others prohibit supervisors from dating subordinates, but don’t prevent non-supervisor coworkers from engaging in such relationship. And some may also have a policy where employees and/or managers romantically linked must immediately let HR know.
In that case, the company may decide to re-assign an employee to another department so they’re no longer reporting to that supervisor. In other cases, HR may task the participants to choose which one will “voluntarily” leave the company. And if they can’t, Hollis says, the company will decide.
“It depends on what’s a company’s tolerance of risk, what the nature of their workplace is and where it believes issues are most likely to arise,” Hollis told HRD.
Kravetz frequently advises clients to make sure their employee handbook states that supervisor-subordinate relationships aren’t allowed. Even if the relationship is between a supervisor and an employee that’s in a different department, it’s still too risky. An employee post-breakup may still claim supervisors are ganging up on them or treating them unfairly due to what happened outside the office.
Even though banning all romantic interactions between coworkers seems like the safest bet for employers, Kravetz doesn’t recommend it.
“It’s absolutely problematic, but are you able to police it and stop it? The statistics would say no,” Kravetz says. “If you have that policy and find out about a relationship, that’s a violation and you’d have to terminate someone. Based on the statistics, you’ll be letting a lot of people go. What HR leaders can do is to communicate with employees that they need to be adults and ensure they don’t bring any of their baggage into work.”
And whatever you do, Kravetz warns, don’t turn a blind eye.
“Ignoring is condoning, at least that’s the perception that will be drawn in a court setting,” Kravetz says. “I’m not suggesting a full-blown investigatory query, but the ‘don’t ask, don’t tell’ approach isn’t what we’re after either. If an employer has an inkling that something is going on, it’s better to address it rather than ignore it.”
