By TJ Carter, SPHR
Most of us have heard about David Letterman’s alleged affairs with his female subordinates, and this is a useful reminder for employers: create a systematic plan for dealing with workplace harassment and romantic relationships. And then follow it.
As the Letterman case shows, the line between inappropriate behavior, romantic relationships, and harassment can blur. Consensual relationships sometimes sour. Other times, employees enter relationships because they feel compelled to, believing that doing so is a prerequisite to success or advancement. And in the worst cases, employees are explicitly told or threatened that the relationship is a job requirement.
To protect themselves and their employees, employers must walk the difficult line between preventing and correcting harassment, without stifling all consensual, non-workplace conduct.
Here are 10 ways to help manage this sensitive subject:
1) Start with a Harassment Prevention Policy.
A solid harassment prevention policy is the first line of defense. But the existence of a policy on its own is not enough. To be effective, a policy must clearly identify who is protected, explain conduct that is prohibited, and tell employees where to report problems and get help. Additionally, supervisors and managers need to know what to do with information or complaints they receive from their employees. And to make sure everyone knows the rules, employers must be sure each employee has a copy of the current policy and know who to ask when they have questions.
2) Training Requirements
Although federal law does not require harassment training, it is highly recommended and may provide an affirmative defense for the employer when challenged. Also, some states such as California do require harassment training, so insure you check your state requirements.
3) Train Everyone
Training lets employees know company standards, and it tangibly demonstrates the company’s commitment. It is also a good opportunity to share information about the company and management. Taking steps to prevent unlawful harassment and discrimination can help the company avoid or reduce potential damages in litigation. It also reinforces to employees that the company takes the issue seriously.
4) Adopt a Conflict of Interest Policy
Employers can restrict relationships that can create an actual or potential conflict of interest, such as a relationship between a superior and a subordinate. In these situations, employers legitimately worry about the potential for the personal relationship to interfere with business judgment. For this reason, many employers’ policies discourage or prohibit relationships that can cause this conflict. Such policies may also specify that employees are expected to disclose relationships that may create a conflict, so the employer can take appropriate action to address any potential conflict. Be aware of state laws that might prohibit strict non-fraternization policies.
5) Distinguish Harassment from Relationships
Not every romantic relationship is ‘harassment’. Relationships can change though. When consensual relationships end, for example, employers must take seriously later complaints of mistreatment. In one case, an employee claimed a co-worker, with whom she had an on-again, off-again romantic relationship, created a hostile work environment. When the relationship ended, the employee complained to the company about her co-worker’s behavior, and the company responded by disciplining the co-worker. When the employee later sued, the company won because it had acted quickly to resolve the employee’s complaints.
6) Do Not Create Temptation
While employers have little control over how employees spend time away from work, they can do things to control conduct that can affect the workplace. For instance, employers should make clear that harassment prevention policies apply to all work-related events. Management should avoid holding company-sponsored events at venues that may encourage behavior that violates conduct policies. One obvious example is the high incident rate between alcohol and unwanted conduct. Employers also can reinforce that its technology, such as email and telephones, are for business use and not for conducting workplace romance.
7) Consider Love Contracts
Some employers ask romantically involved employees to sign a ‘consensual relationship agreement’ or a ‘love contract’. This document generally acknowledges a relationship, confirms that it is consensual and will not interfere with job performance, and reinforces the principles of the employer’s harassment prevention policy. The agreement usually states the employee’s obligation to notify the employer of conduct that violates the policy.
8) Stay out of Employee Private Time
As hard as it may be to accept, employers must recognize there is little they can do about consensual relationships between employees that do not affect their workplace performance or conduct.
9) See it From the Eyes of Others
Employees engaged in relationships are not the only ones who may be subject to a hostile work environment. In one case, the court established that a manager’s favoritism for multiple paramours can create a hostile work environment for other employees. In this case, a supervisor engaged in romantic relationships with several women who reported to him, and they were promoted and treated favorably. While a single act of preferential treatment is not unlawful harassment, the court held “severe or pervasive” sexual favoritism can be actionable conduct. And, the person suing need not be the victim of the conduct.
10) Act on Violations or Complaints
An employer’s most important duty is to act on complaints or anytime it becomes aware of potential violations of its harassment prevention policy. An investigation need not be error-free or conducted with sophisticated methods. But it must be prompt, conducted in good faith, and sufficiently thorough under the circumstances. Employers should take all complaints seriously because employees find it very difficult to bring forth these complaints. A complaint may involve a relatively trivial incident; however, an investigation may reveal a larger problem.
This information should not be construed as legal advice.