Workplace Romance and Harassment: Legal Insights
Workplace romances can lead to conflicts and harassment issues, affecting morale and productivity. Understanding sexual harassment definitions, employer liability, and ways to protect against such incidents are crucial for creating a safe work environment. Legal expert Patricia L. Holland provides insights on managing co-worker relationships, harassment, and employer responsibilities.
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North Carolina Association of Municipal Attorneys 2010 Annual Summer Conference August 5-7, 2010 Patricia L. Holland Jackson Lewis LLP 1400 Crescent Green, Suite 215 Cary, North Carolina 27518 919-424-8608 patricia.holland@jacksonlewis.com
Crossing the Line: When Co-Worker Romance Turns to Conflict Patricia L. Holland Jackson Lewis LLP 919-424-8608 patricia.holland@jacksonlewis.com 2
Whats Harder: Finding Your Dream Job or Your Dream Mate Nearly 1/3 of all romances begin at work Between 6 and 8 million Americans enter into such relationships every year . . . and about 50% of the time, the result is either a long-term connection or marriage Combining romance and career: a dangerous mix 1
Problems With Harassment and Employee Dating Rumors Drain on morale Sensitive issues High emotions Office rumor mill Gossip 2
Employers Can Protect Themselves Understand what is and is not harassment Creative responses to sensitive issues 3
Defining Sexual Harassment Hostile Work Environment 4
Defining Sexual Harassment Frequency of conduct Severity Physically threatening Humiliating or merely offensive Interferes with ability to perform job 5
Defining Sexual Harassment Title VII does not reach genuine but innocuous differences in the ways men and women routinely interact . . . (Oncale v. Sundown Services Inc.) 6
Defining Sexual Harassment Prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace. 7
Employer Liability for Sexual Harassment ? ? ? ? ? ? ? ? Did the employer exercise reasonable care to prevent and correct promptly any sexually harassing behavior? ? ? ? Did the employee unreasonably fail to take advantage of preventive or corrective opportunities? ? ? ? ? ? ? ? 8
Using Investigation to Establish Precise Nature of Conduct Was there a consensual relationship? Has alleged harasser ever sexually harassed anyone else? 9
The Conduct Was Not Severe or Pervasive Verbal banter from a soured relationship E-mails Love letters Staring 10
The Employee Unreasonably Failed to Utilize the Employer s Complaint Procedures Reasonable Care Unreasonable Employee 11
Good Faith Defense Punitive damage can be avoided when employers make good faith efforts to comply with Title VII. 12
Considerations for Good Faith Defense The User Friendly Policy Company Enforces the Policy Prompt investigation 13
Considerations for Good Faith Defense Confronting employees with rumors Love contracts Respond to all dating (customers or other outside sources) 14
The Harassment Was Not Based On Sex Conduct resulted from sexual sparks flying? OR Conduct resulted from resentment of failed relationship? 15
The Harassment Was Not Based On Sex Not all types of sexual favoritism violate Title VII. It is the Commission s position that Title VII does not prohibit isolated instances of preferential treatment based upon consensual romantic relationships. An isolated instance of favoritism toward a paramour (or a spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders. (EEOC Policy Guidance on Sexual Favoritism) 16
Sexual Favoritism OR Sexual Harassment? DeCintio v. Westchester County Medical, 807 F.2d 304 (2nd Cir. 1986) Kaminski v. Freight-A-Ranger, Inc., 2002 U.S. Dist. LEXIS 18858 (2002 ND IL) Succar v. Dade County School Board, 229 F.3d 1343 (11TH Cir. 2000) 17
The Harassment Was Not Based On Sex [a]s long as men and women work together, the potential for sexual sparks to fly in the workplace will always exist. But after a longtime sexual relationship like this one goes sour, it will be only the unusual case that can escape summary judgment. Mosher v. Dollar Tree Stores, 240 F.3d 662, 668 (7th Cir. 2001) 18
Workplace Romance Policies Include a clear statement that supervisor/subordinate relationships are not allowed If circumstances make it impossible to transfer one of the employees involved in the supervisor/subordinate relationship, appoint an uninvolved supervisor to handle the performance and/or compensation review of the subordinate employee 19
Workplace Romance Policies Apply the policy consistently to all employees, i.e., to management and staff alike Train supervisors about the provisions of the policy and how to constructively deal with workplace romance issues Draft a policy that is specific to your particular workplace 20
Workplace Romance Policies Consider whether any existing relationships should be grandfathered in under the new policy Consider the use of Consensual Relationship Agreements or Love Contracts 21
Responding When the Romantic Relationship Resumes Have employees inform the company should the relationship resume Remind employees of the need to report harassment 22
Reducing The Risk Of Sexual Harassment Suits Policies limiting employee dating Risk RiskRisk Clearly defined sexual harassment policy Risk Risk Investigate romantic relationships claims early and thoroughly Take responsive action 23
Summary Judgment When the Sexual Relationship Goes Sour The conduct was not based on sex. The conduct was not severe or pervasive. The employee unreasonably failed to utilize complaint procedure. 24
QUESTIONS? 25
North Carolina Association of Municipal Attorneys 2010 Annual Summer Conference August 5-7, 2010 Patricia L. Holland Jackson Lewis LLP 1400 Crescent Green, Suite 215 Cary, North Carolina 27518 919-424-8608 patricia.holland@jacksonlewis.com
