Employees can spend thousands of hours working with their coworkers annually. Thus, it is no surprise that the workplace has become a dating pool for some employees. Unfortunately, this can create problems for employers. Obvious issues include decreased productivity and indecent public displays of affection at work amongst dating employees. Safety concerns may also arise when employees are in an abusive relationship, or a jealous partner confronts a customer or coworker about interactions with their partner. But employers must also be cognizant about the potential liability exposure to unlawful sex discrimination and sexual harassment claims in the workplace.
LIABILITY EXPOSURE EXPLAINED.
Federal and Minnesota law prohibit discrimination on the basis of sex. Sexual harassment based on one’s sex is a form of unlawful discrimination. Sexual harassment occurs in the workplace when an employee is subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature whereby:
- Submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of employment or basis of employment decisions; or
- Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.
Fundamental to a sexual harassment claim is that the conduct is unwelcome. When the relationship is great, couples may be flirtatious and engage in conduct of a sexual nature at work (e.g. butt slaps, simulating sex, discussing sex, kissing, etc.). This inappropriate conduct can make coworkers uncomfortable. Employers can minimize liability exposure by banning this conduct in the workplace entirely, regardless of whether the individuals are in a relationship or not.
Problems can also arise when the romantic relationship involves a supervisor. A supervisor engaging in behavior with sexual connotations or undertones at work, even if the behavior is only directed to the person whom they are romantically involved with, can unintentionally foster an environment permeated by sexual harassment. Consider the following examples:
- Supervisor Lax on Anti-Discrimination and Harassment Policy: A supervisor may be less likely to address and discipline employees for engaging in conduct that violates the employer’s anti-discrimination and harassment policy (e.g. making sexual jokes, sexual gestures, and discussing sex) when the supervisor engages in the same behavior with their girlfriend or boyfriend at work.
- Acquiesce to Relationship; Fear Discipline: Claims can arise when the supervisor treats an employee with whom they are romantically involved with more favorably than others under their supervision. These situations can place employer at risk for quid pro sexual harassment claims, such as when an employee maintains a romantic relationship solely out of fear that rejecting the supervisor’s advances would result in termination or other discipline. Conversely, other employees could perceive the supervisor’s conduct as fostering a work environment that requires acquiescence to conduct of a sexual nature is a necessary term or condition of employment.
WAYS TO MINIMIZE LIABILITY EXPOSURE.
Establish and Enforce Clear Policies. In addition to antidiscrimination and harassment policies, employers may implement anti-fraternization policies. These policies may minimize employer’s liability exposure for sexual harassment claims, when enforced, by accomplishing the following:
- Prohibit all employees from engaging in public displays of affection or inappropriate touching, discussing sexual matters, and engaging in any conduct of a sexual nature while working on the employer’s behalf. The employer maintains a zero-tolerance policy prohibiting this conduct, regardless of whether the employee’s perform work on or off the employer’s premises.
- Clarify in the anti-discrimination and harassment policy that the prohibited conduct will not be tolerated in the workplace, regardless of whether the employees are or were in a relationship.
- Forbid supervisors from engaging in romantic relationships with (1) a subordinate; or (2) any individual the supervisor manages, supervises, or the supervisor has the ability to influence or impact the terms, wages, or conditions of that individual’s employment.
- Require employees to report suspected violations of the antidiscrimination and harassment policy they are subjected to or witnessed.
- Identify clear reporting procedures, including alternate points for reporting when the suspected individual engaging in discrimination and harassment is a supervisor. Further, explicitly state that employees shall not be retaliated against for reporting suspected discrimination, harassment, or retaliation. Anti-discrimination and harassment policies and antifraternization policies are not foolproof. Nevertheless, these policies are helpful in reinforcing an employer’s policy that verbal and physical conduct of a sexual nature in the workplace will not be tolerated even between partners in a consensual relationship. That prohibition alone can minimize sexual harassment claims.
Encourage Disclosure of Romantic Relationships. Despite maintaining an anti-fraternization policy that may forbid relationships amongst employees, employers must recognize that employees may still engage in these relationships. Employers can still monitor potential risk exposure by encouraging employees to disclose their workplace romances to human resources. This disclosure can help the employer avoid placing the couple in a supervisor-subordinate reporting relationship and minimize potential claims of quid pro quo sexual harassment. The disclosure also memorializes the interaction between the employees and relationship are consensual at the time the relationship is disclosed. The effectiveness of this policy is limited to employees’ willingness to disclose their relationships.
Consensual Relationship Contracts. Another tool utilized by employers are consensual relationship acknowledgments, which are affectionately called “love contracts.” Employers may ask (not require) employees to complete love contracts to notify employers of consensual romantic and intimate workplace relationships. Love contacts are not absolute defenses to sexual harassment claims. However, in the face of an employee’s claim of sexual harassment (complainant) against and individual they previously identified they were in a relationship with, the love contract can constitute evidence that, at least at the time complainant voluntarily disclosed the relationship to the employer, complainant was in a voluntary and consensual relationship with the alleged harasser and that such relationship was not the result of sexual harassment. In other words, this could support an argument that the alleged unlawful conduct of a sexual nature was not unwelcome. The love contract further serves as evidence that the complainant knew they could report discrimination or harassment to the employer at any time.
At minimum, love contracts should contain the following information and acknowledgments:
- Employees’ voluntarily disclosure of their consensual romantic or intimate relationship.
- Acknowledgments that the employees understand that neither their employment nor any terms or conditions of employment are dependent upon the existence of the relationship.
- Remind employees that they are prohibited from engaging in public displays of affection at work and should not engage in inappropriate touching, discussions of sexual matters, or bring their personal matters into the workplace.
- Reiterate the employer’s policy against discrimination and harassment, including the reporting procedures and employees’ obligation to report violations of the policy if they feel they are subjected to or witnessed discrimination or harassment.
- Acknowledgment that employment remains at-will (if accurate) and that the love contract does not alter the employment status of the employees, which is and remains at-will.
Employers should consult with their attorneys about anti-fraternization policies and/or love contracts and how these tools can minimize their liability exposure for sexual harassment claims.
