I have two employees who have clearly started a romantic relationship. I’m concerned about what will happen if the relationship sours, and I don’t support my employees flirting. What is the difference between innocent flirting and harassment?
This can be a difficult area for employers, as sexual harassment liability can mean the end of a business. A fine line separates a chasm of potential liability between voluntary, consensual romantic relationships and sexual harassment. That line may be crossed after one of them breaks things off and things get “messy.”
Some businesses impose rules restricting co-worker romances or address co-worker dating in their sexual harassment policies. While you have a legitimate interest in avoiding sexual harassment claims created by employee relationships, be careful to balance that interest against your employees’ privacy rights. If you’re going to attempt to jump into employees’ personal lives, you should have justification. Creating an overly restrictive “no dating co-workers” policy might infringe upon employees’ rights.
It might sound silly, but some businesses go so far as to have co-workers document that they are in a consensual personal relationship — a “love contract.” These contracts affirm that employees are in a personal, consensual, romantic relationship at work.
If you decide to use a “love contract,” it should state that neither employee feels compelled to continue the relationship to retain their employment or in exchange for an employment opportunity of some kind. Make sure the contract acknowledges your policy against discrimination, harassment and retaliation. Depending on the working relationship between the individuals, you may want to have a statement about preferential treatment.
Both federal and state law require employers to take preventative steps to make sure their businesses are free of harassment. The most important thing you can do is have a written harassment policy — and follow it.
Your harassment policy should be written in clear and understandable language, and should specify what conduct is prohibited. The policy should require employees to report harassment, and you should thoroughly and confidentially investigate all reports. The policy should also protect “whistleblowers” from retaliation.
Ensure that all of your employees know, understand and follow the rules. Every employee should have a copy of your current policy and should know whom to ask when they have questions.
If you are really concerned about harassment, one of the best things you can do is provide harassment training on an annual basis, and some business liability carriers even provide sexual harassment training materials. This kind of training helps everyone understand the difference between harassment and consensual relationships, and will reinforce your harassment policy.
Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached firstname.lastname@example.org or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information.