With love in the air and Cupid circling the office, employers should be wary of sexual harassment lawsuits this Valentine’s Day. A 2013 survey conducted by the Society for Human Resource Management (SHRM) found that 43% of employers struggled with managing office romances, especially those that have gone awry. There are several cases over the years where an employee has received unwanted affection on Valentine’s Day from co-workers or supervisors, and employers have been ill-equipped to handle the fall-out.
For example, in Johnson v. West, 218 F.3d 725 (7th Cir. 2000) Valentine’s Day was at the heart (pardon the pun) of the lawsuit. In Johnson, a supervisor engaged in a variety of inappropriate activities that culminated on Valentine’s Day when he gave his female subordinate a card that read “I can’t imagine loving you more than I do today...but tomorrow I will. HAPPY VALENTINE’S DAY SWEETHEART.” Ultimately, the Seventh Circuit reversed a district court decision in favor of the employer and reasoned that the conduct alleged by the plaintiff could have created a hostile work environment in violation of Title VII of the Civil Rights Act, despite the plaintiff’s failure to promptly report her supervisor’s behavior.
With Valentine’s Day on the horizon employers need to prepare for some potential issues related to workplace romances and take steps to avoid the heartache of litigation:
1. Review and Revise Workplace Romance Policies: Employers should establish written policies that address workplace romances. The most effective policies will prohibit romantic relationships between supervisors and subordinates, which can be an employee relations nightmare given the inherent pressure a subordinate may feel. Also, such relationships can lead to an employer being held liable when a supervisor is the alleged harasser and may also lead to complaints of favoritism. A workplace romance policy should require employees to disclose the existence of a romantic relationship between employees. Lastly, employers should reserve the right to take appropriate corrective actions to minimize any disruptions and conflicts created by workplace romances, such as the authority to transfer or reassign employees whose relationships violate the policy, the issuance of written or verbal warnings for violation of company policy, suspension and even termination of employment.
2. Establish Written Proof of Consensual Relations: For employees in known, consensual relationships, employers should consider requiring that they sign a “love contract”—a document signed by both parties that affirms that the relationship exists and is welcome and consensual. Copies of the contract should be maintained in both employees’ personnel files. This written documentation can be an effective means to rebut assertions that may later be raised in a hostile work environment or sexual harassment claim. If a love contact seems like an inordinate intrusion into the personal relationships of employees, employers should still verify and document (likely requiring employees to complete a form) the relationship, when it began and that it is welcome and consensual.
3. Redistribute the Company’s Sexual/Anti-Harassment Policy: February is a perfect time to distribute annual reminders of the company’s sexual/anti-harassment policy to all employees. Employers should ensure that all employees understand what constitutes sexual harassment. Additionally, employers must consistently apply the anti-harassment policy, even on Valentine’s Day. Therefore, an unwelcome sexually suggestive card exchanged between co-workers should be deemed inappropriate even if it’s given in the spirit of Valentine’s Day. Moreover, employers should take complaints of sexual harassment seriously, regardless of if the complained of conduct could be considered “typical” Valentine’s Day behavior—unfortunately, being crazy in love is no defense to a claim of sexual harassment.
4. Train Managers on Dealing with Workplace Romances: As the age-old adage states “you can’t help who you love,” often times love blossoms in the workplace despite policies and procedures that discourage the conduct. Because workplace romances are a reality, employers should properly train their managerial staff to deal with co-worker romances when they arise and to follow any applicable policies. Managers should be trained on how to react and manage office gossip about workplace romances which can be distracting to employees and adversely affect productivity. Effective training will also emphasize the importance of monitoring conflicts among co-workers that may arise due to workplace romances and responding accordingly. Lastly, managers should be trained on identifying potential areas of liability, such as conduct that violates the company’s sexual/anti-harassment policy or the likelihood of a retaliation claim when the romance ends.
For further reading, check out HRLegalist’s 2014 Valentine’s Day post. Although employers may not be able to stop Cupid’s arrow from hitting its unpredictable mark, with proper planning, policies and training, they can mitigate the impact of the love bug in the workplace and minimize litigation risk.