Beth P. Zoller, Legal Editor, XpertHR

Beth P. Zoller, Legal Editor, XpertHR
When Cupid’s Arrow Strikes: Romance and Personal Relationships in the Workplace Beth P. Zoller, Legal Editor, XpertHR

Workplace Romance Topics We Will Cover
Reasons for increase in workplace romance and recent statistics Risks of workplace romance What harassment is and how it relates to workplace romance Dangers of supervisor and subordinate relationships How an employer can best protect itself and minimize risks when it comes to workplace romances Policies and practices employer can implement as well as love contracts Tips on how to manage workplace romance

Workplace Romance Reasons for Prevalence of Workplace Romance
People spending more time at work Common interests/similarities Proximity and ease of opportunity to start a relationship Lines between working and non-working hours blurred Increasing number of women in the workplace over last 50 years, especially increased numbers of women in traditionally male jobs such as construction, truck driving as well as medicine, law, accounting

Workplace Romance Statistics on Workplace Romance
2013 Survey by the Society for Human Resource Management (SHRM) 43% of HR professionals report romances in their workplaces 79% state that the number of workplace romances has increased or stayed the same 32% of HR professional claims it is the employer’s right to prohibit workplace romances between employees; 49 % say it depends on situation 99% of employers that have workplace romance policies do not permit a romance between a subordinate and supervisors 45% forbid romances between employees of a different rank

How HR learns about the romance % from office gossip; 61 % from reports to HR 81 % of HR professionals think love contracts are a good forum to discuss inappropriate workplace behaviors 53 % of romances are between employees in different departments; 32% between workers of the same rank 8 % of romances happen between supervisors and direct subordinate or employees of significant different rank When an issue occurs because of office romance, 34% transferred to another department 32 % went for counseling More than half of HR professionals claim that employees get married as a result of workplace relationships.

Industries with most workplace romance (Career Builder Survey 2013) Leisure and hospitality 57% Utilities 51% Information Technology 46% Transportation 42% Financial services 38% Retail 35% Manufacturing 35% Healthcare 32% Business services 26%

Workplace Romance Risks of Workplace Romance Risks
Sexual harassment or discrimination lawsuits Decreased employee productivity Inappropriate sharing of confidential information Negative effect on workplace morale Creation of hostile work environment by inappropriate workplace conduct that makes co-workers feel uncomfortable or embarrassed After the relationship ends, the couple may engage in inappropriate workplace behavior such as shouting and fighting/disrupt the workplace Conduct that was welcome during the course of the relationship may be considered unwelcome when the relationship ends, resulting in a sexual harassment claim

Workplace Romance Dangers of Supervisor/Subordinate Relationships
Risks Dangers of Supervisor/Subordinate Relationships During the Course of Relationship Employer may open itself up to claims of favoritism, preferential treatment and discrimination Other employees may claim unfair treatment if the supervisor inappropriately favored the employee he or she was romantically involved with by accepting subpar work from them or giving them more preferred projects Employees may claim public displays of affection and romantic behavior between the supervisor and his paramour are distracting and unprofessional After the relationship ends, the supervisor’s now jilted lover may claim that the relationship was not consensual and that he or she was sexually harassed Employer may face legal liability to defend against the harassment claims Rejected lover may claim that the supervisor retaliated against him or her with a poor performance review and undesirable work assignments after the relationship ended

Risks Dangers of Supervisor/Subordinate Relationships Higher risk when there is a relationship between a supervisor and subordinate in a sexual harassment case If supervisory harassment of an employee results in a tangible employment action (i.e., termination, demotion), the Supreme Court has said that the employer is automatically and strictly liable. If supervisory harassment does not result in a tangible employment action, employer must show: It exercised reasonable care to prevent and correct harassing conduct Complaining employee unreasonably failed to take advance of preventative or corrective opportunities provided by the employer or failed to otherwise follow the employer’s harassment policy and report the harassment

Risks Dangers of Supervisor/Subordinate Relationships Complicated by Supreme Court case of Vance v. Ball State. The Supreme Court held that for an individual to be a supervisor, the individual must have the direct authority to hire, fire, discipline, promote and demote the employee and not merely be an individual who assigns daily work. This case narrowed the pool of supervisors.

Risks Dangers of Supervisor/Subordinate Relationships Green v. Administrators of the Tulane Educational Fund, 284 F.3d (5th Cir. 2002) A doctor pursued an office manager for many years and they ultimately entered into a consensual romantic relationship for about a year. It ended when the doctor began a relationship with another hospital employee. After the relationship, the office manager claimed that the doctor harassed her and changed office procedures, restructured her job duties, reprimanded her and demoted her from office manager to administrative assistant making the workplace intolerable. She sued claiming hostile work environment harassment. The jury in the trial court accepted the argument that this amounted to sexual harassment and awarded $300,000 in compensatory damages (the maximum allowed under Title VII), almost $130,000 in back pay and front pay, and more than $330,000 in attorneys' fees and costs. Appellate court agreed and found the office manager was subjected to disadvantageous terms or conditions of employment to which members of the opposite sex were not.

Risks Dangers of Supervisor/Subordinate Relationships Gerald v. Univ. of Puerto Rico, 2013 U.S. App. Lexis. 1925(1st Cir. 2013) Employee and her supervisor had a "weeklong sexual affair" at a business conference. When they returned to work, she rejected his romantic overtures. A couple of years later, she claimed he engaged in 3 incidents of sexual harassment, including propositioning her, grabbing her breast and making sexually suggestive noises, and propositioning her after a work meeting. Shortly after, he transferred her to a new position and relieved her of all administrative duties and management responsibilities. When she filed a harassment complaint, the University investigated the matter and found no harassment based on witnesses who attested to a previous relationship between them. She eventually quit due to the demotion and the mishandling of the investigation and brought a case for sexual harassment.

Risks Dangers of Supervisor/Subordinate Relationships Gerald v. Univ. of Puerto Rico, 2013 U.S. App. Lexis. 1925(1st Cir. 2013) The 1st Circuit allowed Gerald's sexual harassment claim to proceed, rejecting the notion that the previous relationship and voluntary engagement in sexual banter with her supervisor was an invitation to harassment. An employee telling risqué jokes does not mean that she is amenable to being groped at work. No evidence that she encouraged him to grab her breast. Factual question existed as to whether the supervisor’s conduct was unwelcome and a reasonable jury could find that the harassment was severe or pervasive resulting in a hostile working environment.

Harassment What Is Harassment
Harassment is a form of discrimination through unwelcome conduct It can be either physical, verbal or written Based on or motivated by an individual’s membership in a protected class Has the purpose or effect of unreasonably interfering with an individual’s work performance or creating a hostile work environments that is sufficiently severe or pervasive enough to alter the terms and conditions of employment .

Harassment Quid Pro Quo Harassment Types of Harassment
Submission to or rejection of unwelcome sexual advances, or a requests for sexual favors is made explicitly or implicitly a term or condition of employment Submission to or rejection of such conduct is used as a basis for a tangible employment decision Example: Sleep with me or else I will fire you. I will give you a bad review.

Harassment Hostile Work Environment Harassment Types of Harassment
A series of unwanted sex-related actions, remarks, gestures that are so pervasive they have the effect of changing the terms and conditions of employment or creating an intimidating work environment. It can be one act or many acts. It does not need to be sexual in nature as long as it is gender based--making offensive comments about women in general, stereotypes and slurs can create a hostile work environment. Law does not ban general incivilities in the workplace/ individuals are allowed to be equal opportunity jerks Both victim and harasser can be either man or woman Victim and harasser can be same sex Court will view totality of circumstances and whether a reasonable person would find the conduct offensive

Harassment Conduct That Could Constitute Sexual Harassment
Types of Harassment Conduct That Could Constitute Sexual Harassment Jokes, innuendos or gestures of a sexual nature Sexually charged computer programs, s or messages Language or behavior demeaning to a particular sex (women or men) Compliments about an individual's body of a sexual nature Repeated requests for a date despite refusals Unwelcome sexual advances Requests for sexual favors Questions or comments about personal or intimate sexual matters Hugs, kisses, neck rubs, or back rubs, inappropriate touching Sexual epithets or name-calling Sexually intimidating behavior or ridicule Objects, pictures, photographs, or cartoons of a sexual nature

Harassment Conduct That Could Constitute Sexual Harassment
Types of Harassment Conduct That Could Constitute Sexual Harassment

Harassment Employer Liability Depends On Liability
Who committed harassment Whether harassment resulted in a tangible employment action- fired, demoted, disciplined The employer’s response to harassment *Faragher v. City of Boca Raton (1998), and Burlington Industries v. Ellerth, (1998), the Supreme Court established an affirmative defense that employers may use to defend against claims of hostile work environment harassment.

Harassment Harassment By A Supervisor Liability
Employer will generally be liable for supervisor harassment under state and federal law Recent US Supreme Court case- Vance v. Ball State (2013) - to be considered a supervisor one must have the power to take tangible employment action- directly hire, fire, demote, discipline, reassign, transfer, change in benefits A tangible employment action is usually an official act that is documented by the employer and required formal approval using the employer’s internal processes In such situations, an employer is strictly liable because because the employer has direct control over the supervisor

Harassment Individual Liability Liability
Under Title VII and federal law, there is no individual liability. However, under state law there may be individual liability for engaging in inappropriate conduct or failing to take action if aware of improper conduct. In such states an “employer” may be defined differently. States in which individuals (either supervisors or co-workers) may be liable for harassment – California, New Jersey, Oregon OR if such individuals aid, abet, incite, compel or coerce unlawful harassment.

Harassment Non- Supervisor Harassment Liability
When harasser is a non-supervisor, an employer is liable if it knew or should have known of misconduct unless the employer can show that it took immediate and appropriate corrective action. Non-supervisors include: Lower level employees Co-workers Third parties Vendors Independent contractors

Harassment Notice Of Harassment Liability
An employer may be on notice of harassment when supervisors or management are aware of prior instances by same individuals even if victim does not complain Employer may also be on notice from a witness.

Harassment Employer Response to Harassment Liability
If harassment is by non-supervisor and does not result in a tangible employment action, employer may still be liable depending on response to harassment and if it effectively responded Employer can avoid liability establishing that it: Exercised reasonable care to prevent and promptly correct any harassing behavior The employee unreasonably failed to take advantage of the employer’s preventative and corrective measures Employer must prove the existence of a harassment policy with a complaint procedure and that the employee did not complain

Harassment Harassment Policy Prevention Sets employee expectations
Should be included in an employee handbook and posted in workplace Employees should acknowledge receipt and consent to terms Should be in language all employees can understand Some states have specific requirements for (sexual) harassment policies and what needs to be included, when it needs to be provided and if need to include in employee handbook or post Employers can avoid liability by showing that they have a strict harassment policy that is followed and enforced

Harassment Prevention Harassment Policy

Harassment Harassment Policy Essentials Prevention
A statement of zero tolerance for harassment A description of conduct that constitutes harassment A multichannel complaint procedure A statement that employer will respond to and investigate discrimination, harassment and retaliation complaints by conducting thorough investigation and interviewing complainant, accused and witness A statement that investigation will be confidential A statement of non-retaliation A statement that the employer will impose interim and disciplinary measures if warranted A statement that the employee consents to and acknowledges the policy A statement that the employer will conduct training on harassment, discrimination and office relationships

Harassment Harassment Training Prevention
Training is not required under federal law but an employer who conducts harassment training will have a much better defense in court. Keep a record of training to protect against future lawsuits. An effective training session should last a minimum of one hour and include: An introduction on why training is important Course agenda and expected results Definition of the workplace harassment Inappropriate versus appropriate behavior, harassing and discriminatory conduct Definition of sexual harassment Other unlawful harassment and discrimination Employer policy and complaint procedure No-retaliation policy Remedies

Harassment Investigating a Harassment Claim Investigations
An effective investigation can provide grounds for minimizing employer liability through an affirmative defense. An effective investigation may include: Choosing a Proper Investigator Important to choose neutral, objective, and properly trained investigator- should be a credible and effective witness should litigation result Not advisable to have supervisor or HR conduct since may need to be witness Implementing Interim Measures Temporary transfer or a non-disciplinary leave of absence with pay, to avoid potential harassment during an investigation Employers should be careful because any changes to an employee's work situation can be perceived as retaliatory

Conducting Interviews. An employer must interview the complainant, the alleged wrongdoer, and any relevant witnesses The interviewer asks each interviewee the who, what, why, when, how in an effort to piece together what happened. Frequently, harassment complaints rest on a "he said, she said" story that may make it difficult to assess credibility If available, witnesses should be questioned to corroborate and clarify facts given by the complainant and the alleged wrongdoer Determining Credibility An employer must weigh each party's credibility Investigator should consider the following in assessing credibility: whether the facts make sense, whether there is a motive to be untruthful, whether any facts can be corroborated by external evidence or witnesses

Reaching a Determination and Implementing Corrective Measures. At the conclusion of an investigation, an assessment of what factually occurred and corresponding disciplinary action against alleged wrongdoer may be necessary The corrective action should reflect the severity of the conduct and may range from a reprimand to discharge- punishment should fit crime Employers do not need to provide the complainant information about the disciplinary measures taken against the accused This information should be treated as confidential, just like other disciplinary measures. Documenting the Investigation and Conclusion Important to record all actions During an investigation, the employer should keep documentation of each step in the process, including determinations of credibility and the disciplinary outcome of the investigation If it is determined at the end of the investigation that unlawful harassment occurred, it should not be documented and outside counsel should be consulted immediately

Harassment Investigations Investigating a Harassment Claim

Standing to Bring Claim
Retaliation Standing to Bring Claim Retaliation Prohibited Against Closely Related Individual Title VII prohibits retaliation against someone closely related to or associated with the person claiming discrimination. In Thompson v. North American Stainless, +131 S. Ct. 863 (2011), the Supreme Court ruled that a terminated male employee had standing to sue even though it was his fiancée who had engaged in protected activity by filing a sexual harassment claim against their employer. Title VII intended to cover anyone in the zone of interests, to the extent that retaliation against the male employee would dissuade his fiancée from filing a sexual harassment charge.

Managing Workplace Relationships
Workplace Romance Managing Workplace Relationships Determine Employer’s Approach to Relationships Approach #1: Can ban all interoffice dating Difficult to do Relationships will likely happen so best to put policies in place to deal with them Some state laws prohibit employers from regulating off duty activities of employees Approach #2: Prohibit relationships between a supervisor and his or her subordinates Approach #3: Require employees to notify their supervisors of the relationship and refrain from romantic and/or sexual behavior in the workplace as this could be potentially distracting to other employees Approach #4: Prohibit relationships with outside third parties such as clients or vendors so as to avoid conflict of interest or appearance of impropriety

Workplace Romance Managing Workplace Relationships What Can an Employer Do Implement policies Monitoring employees and relationships Manage relationships

Workplace Romance Managing Workplace Relationships Employee Dating and Personal Relationships Policy Aims to decrease perceptions of sexual favoritism, avoid claims of harassment and third party harassment Sets parameters and guidelines with respect to workplace relationships Helps to maintain a professional workplace and prohibit inappropriate conduct such as public displays of affection Lets employees know they have no expectation of privacy with respect to workplace romance Requires employees to disclose relationships to HR or other departments Should be broad enough to cover a wide range of workplace behavior and prohibit conductive that negatively affects the workplace Be specific, so employees know what is and is NOT allowed! Notifies employees of consequences for violations--discipline, termination

Workplace Romance Managing Workplace Relationships Employee Dating and Personal Relationships Policy

Workplace Romance Managing Workplace Relationships EEO Policies As noted earlier, important to provide training on discrimination, retaliation and harassment to all supervisors and employees Training should cover what is considered appropriate and inappropriate behavior for the workplace and provide employee guidelines to follow. Keep a record of the training in order to protect against any future lawsuits. Provide multichannel complaint system that allows employees to bring complaints of discrimination or harassment to multiple members of management Address and respond to employee complaints of discrimination, harassment or retaliation by investigating matter, interviewing witnesses Ensure employees there will be no retaliation

Workplace Romance Managing Workplace Relationships EEO Policies Interim and Disciplinary Measures While the investigation is pending the employer should consider whether it is necessary to implement any interim measures. At the conclusion of the investigation, the employer should not hesitate to impose discipline if needed.

Workplace Romance Managing Workplace Relationships Conflict of Interest Policy Will put employees and supervisors on notice that they will be obligated to disclose any actual or potential conflict of interest that adversely affects their judgment, objectivity or loyalty to the employer or to their work May prohibit supervisor and subordinate relationships or make sure to reassign individuals to avoid conflict of interest Have employees sign acknowledgment and consent form

Workplace Romance Managing Workplace Relationships Love Contract Purpose Document signed by employees involved in a romantic relationships Sets parameters and guidelines for relationships Effectively manages employees who are dating and limits employer liability in the even workplace romance ends. It protects employer interest Consent – by signing the love contract, the employee agrees that the romantic relationship is voluntary and entered into without any coercion or duress and that neither employee will sue employer for sexual harassment EEO policies- reminds employees of employer polices regarding prohibition on harassment, discrimination and retaliation Acknowledgment- by signing the love contract, employee consents to all company related policies--EEO, workplace romance, conflicts of interest

Workplace Romance Managing Workplace Relationships Love Contract Employee Conduct- outlines the employer's expectation of what is considered appropriate and inappropriate conduct in the workplace Attempts to limit behavior co-workers may find distracting, uncomfortable or intimating to other employees or third parties Employees attest that relationship will not interfere with work performance or work productivity and they will act professionally at all times and will not cause unnecessary workplace disruptions or distractions Supervisor relationship- if employer permits relationships between supervisors and subordinates, employee and employer should agree that supervisor should not be part of employment decisions affecting the subordinate or any decisions that impact terms and conditions of employment Arbitration clause- love contract may require that employees submit any workplace disputes or problem caused by relationships to arbitration

Workplace Romance Managing Workplace Relationships Love Contract Once love contract is in effect, employers should regularly check in on state of consensual workplace romances. At the first sign that a romantic relationship is no longer consensual, employer should be on lookout for inappropriate, unwanted, retaliation conduct or harassing/stalking behavior. Difficult to enforce--may be slippery slope as to when employees are actually involved in romantic relationships Friends with benefits, hooking up, employees may not recognize when they are in an actual relationship and when it is necessary to notify the employer.

Workplace Romance Managing Workplace Relationships Training on Workplace Relationships Provide training on workplace policies to supervisors Alert them as to conduct that is expected, how to identify conduct and how to set a good example Train on how to identify and report inappropriate conduct to HR or internal department Train on how to address sexual conduct at work Provide training to all employees so they know about unlawful conduct and harassment

Workplace Romance Managing Workplace Relationships Monitoring Workplace Relationships Monitor Dating Employees Advise them to cut down on public displays of affection or uncomfortable conversations Make sure that lovers’ quarrels or couple time do not interfere with work time Make sure dating employees do not share inappropriate information Enforce policies uniformly and take appropriate actions for violations Avoid overly sexual employer-sponsored events and parties that include alcohol and create temptation Monitor Relationships with Supervisors Avoid having management level employee supervise his or her paramour or permit employees in the same reporting line to date This may lead to claims of discrimination, favortism and unfair treatment. If an employer permits such relationships, be sure to closely monitor the situation to prevent any discrimination or unfair treatment.

Workplace Romance Managing Workplace Relationships Paramour Preference If supervisor and subordinate are involved in a consensual relationship and supervisor gives paramour preferential treatment or preferred work – do the subordinate’s co-workers have a claim for harassment or discrimination? No, the EEOC and the courts have held that while isolated instances of preferential treatment toward a paramour may be unfair and have a negative impact on the workplace, it does not discriminate against men or women in violation of Title VII since both men and women are disadvantaged for reasons other than gender. In such cases, the workplace favoritism shown toward a co-worker is not based on a protected characteristic and not covered by Title VII. Co-workers will not have a claim for sex discrimination or harassment because the conduct was not “because of sex”.

Workplace Romance Managing Workplace Relationships Paramour Preference Cache v. Clark Valley Electric Company, (10th Cir., July 25, 2014) Male project manager claimed that his supervisor engaged in discrimination by favoring a female project manager with bonuses, job assignment and working conditions because the supervisor and the project manager were romantically involved. Male manager could not prove that the supervisor treated women more favorably than men because the supervisor only gave his paramour preferential treatment.

Workplace Romance Managing Workplace Relationships Paramour Preference- Exceptions to Rule Exception #1: If a female employee voluntarily agrees to a supervisor's sexual advances and receives job benefits in return, the employee may be unable to claim sex harassment. However, co-workers who were qualified for the job benefit but did not receive it may be able to claim that they were discriminated against because providing sexual favors was an implied condition of receiving job benefits.

Workplace Romance Managing Workplace Relationships Paramour Preference- Exceptions to Rule Exception # 2: If favoritism based on the granting of sexual favors is widespread, co-workers both male and female who do not welcome this conduct may be able to establish a claim for a hostile work environment. In such a case co-workers may be able to argue that conduct created a sexual atmosphere that co-workers found offensive and it was sufficiently severe and pervasive enough to alter the terms and conditions of employment and create an abusive working environment. Exception # 3: Jilted lovers may have claims. If a subordinate ends a relationship with a supervisor and the supervisor treats her differently after the relationship ends, the employer may be liable under Title VII. Here, the discrimination would be based on sex.

Workplace Romance Managing Workplace Relationships Paramour Preference- Exceptions to Rule

Workplace Touching What Is Inappropriate Workplace Touching?
Can be any physical contact in the workplace Examples - handshake, pat on the back, or a congratulatory or consoling hug versus hugs, touches and other gestures of a physical nature, but not necessarily a sexual nature that tend to make a co-worker feel uncomfortable Employees have different perceptions based on background/personality/culture Some individuals may be very open, affectionate and friendly with co-workers and not think twice about being on the giving end or receiving end of such physical gestures Others may be more closed off, feeling threatened, humiliated or offended by physical contact, and preferring to keep a good deal of physical space in between them and their co-workers Employees need to know the proper boundaries and the difference between appropriate and inappropriate workplace conduct

Workplace Touching Establish Guidelines
Refrain from touching another person's hair, face, clothes, and shoulders is generally not proper workplace conduct. Be careful about giving hugs and kisses at work. It is advisable to stick with handshakes which are more professional. May differ based on workplace and industry Build atmosphere of tolerance and respect Respect different cultures and personalities Gender - male versus female conduct Culture - Europeans and Mediterranean cultures (kiss hello) versus Asian cultures (more formal in physical approach)

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