February 14, 2018 Romance in the Workplace
KEEPING YOU INFORMED…
“Romance” is defined as, among other things, “a feeling of excitement and mystery associated with love;” or “a love affair, especially one that is not very serious or long-lasting.” When it comes to the workplace, however, there is a significant and potentially detrimental difference between an “office romance” and a one-sided sexual attraction that may rise to the level of sexual harassment. This Valentine’s Day, it is incumbent upon all employers to ensure that their policies and practices regarding sexual harassment, and even romantic and consensual workplace relationships, cover the good, the bad and the ugly.
In recognition of #MeToo and #TimesUp, we take you away from our regularly-scheduled “Romance in the Workplace” memo to bring you an employer’s “best practices” guide to most effectively protect both employers and employees from the pitfalls most often associated with workplace relationships and other consensual and non-consensual workplace interactions.
“Can’t Fight this Feeling”: Recognize and Be Proactive About Workplace Romances
In an ideal world, employees would love their work and love where they work, but not be involved in love at work. But, that is an unrealistic expectation, given how much of our lives are spent at work and interacting with our coworkers. According to a 2018 CareerBuilder Annual Valentine’s Day survey, approximately 36% of employees who responded to the survey admitted to having dated a co-worker. While this number is slightly lower than in years past (possibly due to the rise in publicity of sexual harassment scandals), the number of employees who have dated their boss or another superior (as opposed to a subordinate) is on the rise. 22% of the responding employees reported that they have dated their boss, and 30% reported dating someone in a higher position in their company.
While some employers may choose to implement an anti-fraternization policy to “deal” with workplace relationships, this may not always be the best approach. To that end, 41% of survey respondents stated that they chose to keep their workplace relationship a secret at work. Therefore, employers should consider implementing a policy that requires employees to report a workplace relationship to Human Resources (or their workplace’s equivalent), so that the employer can take any necessary actions to avoid potential future liability in case the relationship does not last (such as changing the reporting structure of the couple, if necessary, so that one employee in the relationship is not responsible for the terms/conditions/discipline; etc. of the other). If you are thinking about implementing this kind of policy, we recommend that you first speak with us to determine, among other things, whether you will have any bargaining obligations with your union(s) prior to/as a result of doing so.
For employers who already have this kind of policy in place, some best practices include meeting with the employees to confirm that the relationship is consensual, advising them to keep their romance out of the workplace (i.e., you should be working, not flirting, at work), and providing them with copies of the employer’s relevant policies including, but not limited to, anti-harassment and anti-discrimination policies. Moreover, the supervisor/H.R. personnel who conducts this meeting should maintain a record of what was discussed in case one (or more) employee’s story changes from what was initially conveyed to the employer.
“How Do You Spell Love?”: Update Your Policies
Even employers with longstanding anti-harassment and anti-discrimination policies are not “free and clear” of any and all potential liability if a relationship goes awry or (as has been in the headlines lately) was actually a non-consensual sexual interaction. Employers should take the time to review and update their policies regularly to ensure that they comply with the current state of the law and reflect the guidance and best practices provided by law enforcement agencies such as, but not limited to, the Equal Opportunity Employment Commission (“EEOC”).
At a minimum, the anti-harassment policy should, in simple and easy-to-understand language, define the types of harassment (quid pro quo/“this for that” and hostile work environment) and provide examples of prohibited conduct; prohibit illegal harassment and discrimination based upon any characteristic protected by applicable law (note: local laws may provide greater protections/a broader scope of protected classes than the State or federal laws); explain that investigations of alleged harassment/discrimination will be promptly conducted; explain that, while confidentiality cannot be guaranteed, steps will be taken to limit the dissemination of information to only those involved in the investigation and the response thereto; prohibit retaliation for reporting alleged harassment/discrimination or participating in an investigation relating to same; provide adequate and realistic reporting mechanisms, including multiple avenues for reporting complaints (even those against the highest level managers, supervisors and owners – the “boss’s boss’s boss”); prohibit or provide mandatory reassignment for romantic relationships between (or among) employees in direct reporting relationships (superior-subordinate); encourage prompt reporting of any perceived noncompliance with the policy; and include a statement/signature line for the recipient of the policy to sign indicating that the recipient has received, read, understands and agrees to abide by the policy, and indicating the person(s) to whom any questions about it should be addressed.
“Shouting Out Love”: Make Your Policies Known and Accessible
Policies can only be effective if they are properly communicated to all staff including, but not limited to, employees, supervisors and senior management. Therefore, as a best practice, employers should provide training on their anti-harassment and related policies on at least an annual basis. To that end, employers, especially those without an H.R. department, may want to consider bringing in a third-party to perform the training so that employees feel comfortable asking any questions they may have about the policy/policies; e.g., “What do I do if the owner of the company/my boss/a member of the Board of Trustees is acting inappropriately towards me and I think it might be harassment?”
Another best practice is to make the policy/policies as accessible to employees as possible. This includes, but is not limited to, disseminating copies (digital or print, so long as the employees can sign off on them as indicated above) to every employee, manager, supervisor, etc.; making the policy/policies available on the employer’s intranet and/or in the employee handbook (if applicable); and placing, as applicable, the anti-harassment, anti-discrimination, anti-nepotism/fraternization, anti-retaliation and any other related policies near each other in the intranet posting/employee handbook so that they do not get “lost” or “forgotten” among the employer’s other workplace policies.
“Love Yourself”/“The Bad Touch”: Be Prepared to Take Action When Necessary
As the adage goes, “all good things must come to an end.” When a relationship sours, one or more of the parties might engage in harassing conduct or be inclined to “seek revenge” by making allegations of harassment; etc. Additionally, in today’s reality, individuals are becoming more empowered to speak out and report alleged sexual and other misconduct, even in the non-relationship context.
Employers, therefore, need to be ready and able to promptly and thoroughly investigate any allegations of harassment (etc.) as they arise. As a practical matter, the investigation should be conducted by an impartial individual so that the ultimate determination and recommendations of the investigator are less likely to be perceived as favoring one party over the other. The investigation should also be documented to protect the employer from allegations that it failed to act in response to a complaint. If an investigation is, for whatever reason, prolonged or delayed, employers should consider as a best practice periodically advising the complainant(s) and the alleged harasser(s) of the status of the investigation (e.g., interviews are still being conducted and were delayed due to the illness/vacation of a witness; etc.). Once an investigation has been completed, affirmative steps should be taken to advise the complainant(s) and the alleged harasser(s), in writing, of the outcome of the investigation. Where appropriate, swift remedial action should be taken to remedy the situation and to prevent a similar future situation from occurring between/among the at-issue individuals. Finally, periodic “check-ins” or follow-ups should be conducted to ensure that any responsive actions have, in fact, remedied the issue(s) and to remind the individual(s) that retaliation is prohibited and should be immediately reported.
In sum, with all of the recent media attention surrounding sexual harassment in the workplace (and other harassment/discrimination issues), employers have no excuse for failing to take adequate steps to prevent or fully investigate workplace harassment/discrimination. By having/regularly updating, implementing and effectively communicating anti-harassment, anti-discrimination and other workplace policies, employers can avoid potential liability and other workplace romance (or not) pitfalls.
Please do not hesitate to contact Alyssa Zuckerman at ALZ@lambbarnosky.com or any of our other attorneys if you need assistance updating or drafting your anti-harassment, anti-discrimination, anti-retaliation or other workplace policies; would like assistance conducting training related to your policies; or have any questions regarding the information contained in this memorandum.
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 2018
 Doing so will help avoid claims of favoritism by other employees, which will help with office morale. Keep in mind, though, that an employer should check any applicable collective bargaining agreements; etc., to ensure that it does not have any restrictions on transferring or otherwise changing the terms and conditions of employment for an employee in this situation.
 In reassignment situations, an employer should carefully consider who is reassigned. Always reassigning the subordinate employee may have a disparate or discriminatory impact on the workplace structure.