Dating In The Workplace
Sexual harassment prevention and response are hot topics now, as they were during the Clarence Thomas/Anita Hill hearing, the Bill Clinton/Paula Jones sexual harassment lawsuit, and the Clinton/Lewinski debacle. More challenging than the obvious behaviors, HR professionals have to wonder how to navigate the less-clear issues of workplace friendships and office romance. How many times have I had to explain to an supervisor, manager or executive that their “friend” with whom they engaged in “friendly” behavior, is NOT THEIR FRIEND? I lost count.
We all know that an employer faces “strict liability” if a supervisor “sexually harasses” a subordinate and the subordinate is subject to an adverse employment action, such as termination or demotion.
But other conduct may be difficult to categorize. When does joking go too far? What happens when a consensual office romance ends?
The interesting similarity in managing religious-based behavior and sex-based behavior is that the employer cannot ban such behavior in its’ entirety. The employee’s religious self as well as their sexual self, has to be allowed at least a minimal expression in the workplace. Both are on a continuum where it sometimes challenging to say what is acceptable expression, and what isn’t. As well, what’s acceptable on a Monday, may no longer be acceptable on a Tuesday.
We have seen that courts will look at events from the victim’s point of view, not the alleged harasser’s. “We’re friends. That kind of talk is just friendly talk among friends”, “I didn’t mean it”, “I was kidding; it was just a joke” are not defenses to a claim of harassment. Courts will look at whether the victim felt harassed and whether a reasonable person in the victim’s position would feel harassed.
Should HR Control and Monitor Office Dating?
Harassment can stem from an office romance gone sour, yet it is ill-advised to ban intraoffice relationships altogether. In fact, between co-workers with no authority over each other, banning romantic relationships may be against the law.
Surveys indicate that up to 50% to 55% of persons have engaged in an office romance.
In most situations, co-workers can ask an employee to go out on a date. But that doesn’t mean the employee can ask a co-worker out on 10 straight days. At some point, the friendly asking out on a date can become harassment. Our studies have shown that by the third invitation, the behavior is seen to be harassing.
Managers need to be particularly careful about dating any employees simply because of the hierarchy, their position of power can be abused whether it’s a direct supervisory relationship or not.
Even if the manager and the employee don’t have a reporting relationship, a romantic relationship can be problematic. Consider whether the manager is close to the worker’s supervisor. Does the worker feel obligated to accept the invitation or risk losing his or her job? Defining behaviors to be sexual harassment or not depends on so many factors, including power dynamics, unrelenting requests, and fear of reporting or backlash.
The employer should know about such a relationship and should ensure that the manager has no way to affect the terms and conditions of the worker’s employment. As well, the employer must watch for complaints from co-workers, that the person involved in the romantic relationship is receiving preferential treatment.
An employer should consider adopting a “love contract” so that employees are required to provide the employer with the information it needs to protect itself and its workers, he said. Send an e-mail and I’ll be happy to provide sample documents to you!
What Is HR’s Role?
The HR department should have an open-door policy to make it comfortable for employees to come forward to say they are dating. If there is a culture of fear, all the policies in the world won’t work, the Harvey Weinstein debacle is a good example of this.
Sexual harassment training is also important so that employees understand what behaviors are unacceptable. That training should extend to every employee in the organization, from workers, managers, human resources personnel, all the way up to the CEO.
Supervisors must be trained on how to handle complaints and should understand what situations require them to notify or involve HR. In addition to providing training, companies should have clear anti-discrimination, anti-harassment and anti-retaliation policies.
In the face of the #MeToo movement, many employers are hiring outside services to provide an 800# for employees to report any concerns, to objective outsiders.
When an office romance ends badly, the responsibility is on the company to resolve the issue.