February 24, 2015 Romance in the Workplace
KEEPING YOU INFORMED…
Since February is the month of love, we thought it would be a good time to remind you about both some of the potential legal issues that may arise because of workplace romances, as well as some of the best practices that you should consider adopting when dealing with love-struck employees.
Given the amount of time people spend together at work, it is not surprising that love often blooms in the workplace. However, just as quickly as relationships develop, they can similarly degenerate into sources of distraction or discomfort, which can have both an adverse impact on the work environment and expose the employer to legal liability. A New York City law firm recently found out the hard way how quickly a relationship that initially appeared to be consensual degenerated into something else. An attorney no longer employed by the firm filed a lawsuit against the firm and one of its partners. She accused the partner of repeatedly harassing her during her four month employment at the firm, ultimately forcing drunken sex upon her following a holiday party. Earlier this month, a federal jury found the firm and the partner partially liable for creating a hostile work environment and awarded the plaintiff $140,000 in damages: $90,000 to compensate for lost income (back and front pay) and $50,000 in punitive damages ($45,000 from the partner and $5,000 from the firm).
While no policy can prevent alleged non-consensual sex in the workplace, developing appropriate policies and making an avenue of complaint known to employees may help reduce potential liability when sexual harassment, or even a consensual workplace romance, arises. By letting everyone know in advance the parameters pursuant to which romantic relationships will be permitted in the workplace, through a combination of common sense actions and appropriately tailored and implemented policies, employers will best be able to reduce their potential liability.
In order to limit claims of favoritism arising from workplace romances, employers may consider implementing an anti-fraternization policy that prohibits employees from maintaining certain kinds of “personal-plus”-type relationships with each other, as well as an anti-nepotism policy that precludes employees related by blood or marriage from working in a supervisor/supervisee capacity.
A 2013 survey conducted by the Society for Human Resource Management found that 67% of the responding human resource professionals reported that the number of workplace romances in their organizations had remained the same since 2005. Nevertheless, twice as many employers within that same time period reported adopting written or verbal policies addressing workplace romance issues. According to the survey, approximately 99% of the responding employers now prohibit relationships between a supervisor and a direct subordinate, an approximate 9% increase.
One of an employer’s best defenses to claims of favoritism as well as to claims of sexual harassment is to maintain and consistently apply all adopted policies. For this reason, when an employer first learns of a potential romance, the employer may consider taking a more proactive approach rather than ignoring it. This may include meeting with the employees to verify the existence of the relationship, confirming that the relationship is consensual, advising them to avoid publicizing their romance in the workplace, and providing them with copies of the employer’s anti- nepotism and anti-fraternization policies and getting a receipt of same.
In addition, because many relationships sour, the employer should also provide the then lovebirds with a copy of its anti-harassment policy and maintain a receipt acknowledging same. The anti-harassment policy should describe the steps an employee should take if the employee believes that he/she is being harassed or discriminated against. Supervisors should be trained to identify potential harassment and on what to do if they become aware of potential harassment. If a complaint of harassment is made, the employer should promptly and thoroughly investigate the allegations and take appropriate remedial action where necessary. Failure to do so may result in the employer being found to have condoned the improper conduct of the harasser.
As always, because of the myriad of legal issues and related complications involving applicable laws, rules, contract provisions, policies and practices, we encourage you to seek the advice of your counsel before taking any action, including implementing new policies. We have attached a prior memo to our employer clients on this subject, which contains additional tips and information. Please feel free to contact us to address these and any related issues or concerns.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2015
1. See Dana Wilkie, Forbidden Love: Workplace-Romance Policies Now Stricter, SHRM, Sept.24, 2013, http://www.shrm.org/hrdisciplines/employeerelations/articles/Pages/Forbidden-Love-Workplace-Romance-Policies-Stricter.aspx.
2. As a best practice, the employees should have been provided with a copy of the anti-harassment policy when first hired and annually thereafter, and should be required to sign a receipt for same.