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Office romance: Don’t ban it; manage it

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in Compensation and Benefits,Discrimination and Harassment,Employment Law,Firing,Human Resources

Title VII of the federal Civil Rights Act prohibits employment discrimination based on a person's sex. When office romances sour, scorned lovers often use this law to allege that their former lover was a sexual harasser.

A landmark 1998 Supreme Court ruling (Faragher v. Boca Raton) said that employers are responsible for the actions of their supervisors. That ruling said employers, to be able to put forth a defense in harassment cases, must establish a sexual harassment policy and complaint procedures. The policy must include a provision allowing harassed employees to bypass their immediate supervisor when reporting harassment.

A 2004 Supreme Court decision (Pennsylvania State Police v. Suders) says harassed employees can quit before filing charges internally if they believe working conditions are too difficult to continue. The legal term for such a situation is "constructive discharge." The Suders case illustrates that employers must be alert to sexual harassment and investigate any complaints, even if the alleged victim quits.

What's new

More employees these days say they've been involved in office romances. In fact, 58 percent of people responding to a Vault.com survey last year said they've been involved in a workplace romance. That's up from 46 percent in 2003. Also, 14 percent of respondents said they've dated a boss, and 19 percent said they've dated a subordinate.

Employers also have some educating to do on their policies. A remarkable number of respondents to the Vault.com survey (44 percent) said they didn't even know if their organizations had a policy on office romance. (17 percent said "Yes," while 39 percent said "No.")

Sexual harassment law continues to be shaped by new court interpretations. Some recent decisions show how complicated the issue has become: 

  • A California court ruled that employees can sue if they're treated worse because they aren't reaping the advantages of the boss's special attention. (Miller v. Department of Corrections)
  • A federal court expanded employer liability (as defined in the Faragher case) by ruling that employers can be sued for sexual harassment carried out by independent contractors. (Dunn v. Washington County Hospital and Coy
  • Lawsuits for same-gender sexual harassment have been on the rise ever since the Supreme Court ruled in Oncale v. Sundowner (523 U.S. 75, 1998) that employees can sue for male-on-male sexual harassment.
How to comply

Based on all these legal risks, should your organization forbid office romances as a way of preventing sexual harassment charges? You can legally do so, but it probably isn't the wisest move.

A "no romance" policy could be nearly impossible to enforce and affect employees who are already involved in relationships with co-workers.

Instead, employers must look at the larger picture. Relation-based favoritism and discrimination are the real culprits here. When employees supervise or evaluate "significant others," they lack (or are perceived to lack) sufficient objectivity to perform the job fairly. As a result, other employees may feel they're being discriminated against.

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Too often, employees promoted to managerial jobs are unaware of tricky HR topics they must navigate to avoid retaliation lawsuits. You must train managers not only on sexual harassment issues, but on how to prevent spurred-lover retaliation, secret —and overt—relationship jealousy and 80+ other HR issues. Your “good faith” efforts to train managers can go a long way with the courts... Protect your organization now by downloading this key resource: HR Memos to Managers.

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While these scenarios may be troublesome, they are not necessarily illegal. Unless discrimination is actually occurring and is due to the victim's membership in a protected class (gender, race, disability status, religion, ethnic heritage or national origin), it most likely violates no law.

The best course is to try to manage office romance, not ban it. Three tips:

1. Establish a policy that bans relationships between supervisors and their subordinates. Or, at the very least, require supervisors to notify you if they become involved in such "power-differentiated" relationships. (This may require one employee being moved to work for another supervisor.)

2. Set behavior guidelines. Your policy should require professional behavior at all times. One recent case showed that public displays of affection could help produce a hostile-environment claim.

3. Look into complaints about interoffice romance. Tell the cubicle cupids that their behavior makes others uncomfortable. Remind them of the policy and explain that if the relationship interferes with work, one party may be transferred or dismissed.

The cardinal rule in all policy making and discipline is to treat everyone equally and according to the policy.

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