National Clothesline
National Clothesline
Is it romance or harassment?
The federal law against sexual harassment was the creation of the Equal Employment Opportunity Commission (EEOC), not Congress.
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By regulation, the EEOC decided that sexual harassment — including certain vulgar language — was “sex discrimination” under the Civil Rights Act. Originally, sexual harassment was not recognized if the harasser and victim were the same sex, or if the harasser was an “equal opportunity” harasser targeting both men and women.
As you certainly know, the definition of sexual harassment has expanded over the years. Same-sex harassment is covered, and courts now spend more time evaluating the language of the workplace than it did 40 years ago.
In addition, harassment based on other protected classifications — religion, race, national origin, disability, and so forth — has been deemed illegal under the Civil Rights Act.
Words, even words that the speaker thinks are humorous and therefore appropriate, come under greater scrutiny today when spoken in the workplace.
I am sure that even the EEOC never contemplated the expansion.
This article, however, is not about sexual or other forms of harassment. It is about office romance, which is complicated by the laws against sexual harassment. Office romances often end badly, and when they do, it can quickly become the employer’s problem. For this reason, most employers should think about the problem of office romances, even if they do not have a policy dealing with it.
Some companies prohibit dating among employees. Some require employees to disclose a romantic relationship; some prohibit people from supervising employees with whom they have a relationship. That relationship can include marriage.
Most companies deal with office romances on a case-by-case basis, choosing to step in when they break down, or ignore them if the romance is not causing any operational issues.
In my mind, the two most difficult times for an employer are the beginning and the end of a romantic relationship.
At the beginning, a request for a date, especially by a supervisor, gives rise to questions of whether the request is “unwelcome” under the sexual harassment law. It is well settled that repeated requests for a date that are turned down can constitute sexual harassment, but how about one question? The reaction to a “not interested” response could create a sexual harassment issue, especially if it is followed by a change in the office relationship.
At the end of a relationship, the employees can sometimes be like a couple that went through an ugly divorce. Because the romance took place in the office, one can argue that contrary to all appearances, the relationship was not really consensual.
I have seen plenty of cases where an employee claimed that she did not feel she could turn her supervisor or another manager down, so she went along to prevent the situation from affecting her job.
The existence of a sexual harassment policy that includes a reporting procedure helps, but if one of the employees involved was the president, owner, or most senior manager of the company, the existence of a reporting procedure becomes less compelling.
Should employers ban dating in the workplace? No, but not for the reason you might think.
Banning dating, if it could be an effective policy, would be a good idea, but these anti-dating rules are virtually impossible to enforce. Employees prohibited from dating do not stop dating; they just keep the relationship as secret as they can.
Moreover, if you adopt a policy against dating, what do you do when your two best employees are the ones found to have violated it? Fire them? Ignore it, which makes future enforcement efforts difficult? It is like drug testing — do not adopt a policy unless you are prepared to deal with positive drug tests from your best employees.
I believe a better approach is to include dating and office romance in the sexual harassment policy and deal with actual romances on a case-by-case basis.
The policy should make it clear that any dating among employees will be subject to greater scrutiny than other matters to insure that the relationship is consensual and either remains so or ends amicably.
Once a relationship becomes apparent, evaluate a rational and reasonable approach to it. If there is a supervisory relationship between the love birds, consider changes in the supervisory chain of command.
Some companies require employees to sign a “love contract” with the business that deals with all of these aspects — consent, termination, etc.
Although I am a lawyer, I hate turning the workplace into a contractual jungle. I think the better approach is to talk to both of the employees, and then put a memo in their personnel files memorializing the conversation.
Having a love contract invites this question on the witness stand in a sexual harassment case: “You were so concerned about this relationship that you required both of the employees to sign a contract, true?”
You have to strike the right balance between formal and casual.
Training is always a good idea for employees and supervisors. In some states, training is required on the subject of harassment. Letting everyone know that office romances create problems, and that you want to avoid those problems, is a good idea. Just make sure the trainer is good.
Adulterous relationships have their own problems. Frequently, drastic action is necessary because instead of two people involved, there are three or four. Talk about ugly.
Finally, a word in favor of office romances. I know many married couples that met in the workplace. I know married couples that met in the workplace and ended up in business together. I know divorced couples that work together without any problems.
Dating a coworker is safer than Internet dating, and in the long run, if there is attraction between employees, there is almost nothing you can do to prevent it. Because you cannot prevent it, you should probably adopt methods to control it, employing good judgment and commonsense. Leave the “love contracts” to the big employers.

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Frank Kollman is a partner in the law firm of Kollman & Saucier
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