Business Law- Can An Employer Prohibit Dating In The Workplace? The Road To Love Or Litigation
Often times romantic relationships can arise between co-workers. This is unavoidable when employees spend a large portion of their day together at work and get to know their co-workers and develop more than professional feelings and attractions for one another. While these romances hopefully lead to happy marriages and unions they can also end in awkward break ups or even litigation. There is always the possibility that once the relationship ends an employer can be subjected to liability based upon sexual harassment if the employer was not adequately prepared to handle such workplace romances and their sometimes messy end.
The Civil Rights Act (“Title VII”) protects employees from discrimination on the basis of race, color, national origin, religion and/or sex. Employers need to ensure their policies and procedures affirmatively addressed workplace romances or they could be subject to Tile VII claims of discrimination.
Some employers attempt to circumvent any liability by expressly outlawing dating between co-workers, however, despite these no dating policies workplace romances still arise. A more pragmatic solution is to have a policy which requires disclosure of relationships between co-workers. If a relationship is disclosed an employer can have the employees attend counseling on the employer’s sexual harassment policies and sign consents that they are aware of the policy and the method for reporting violations of the policy.
Additionally, the employer may require that the employees sign an acknowledgement that they are both freely and voluntarily entering into the romantic relationship, that they will conduct themselves in a professional manner while at work.
Additionally, relationship between supervisors and their subordinates may require additional steps on behalf of an employer to protect itself from liability. Even having the employees sign an acknowledgement that the relationship is voluntary may not be adequate to show that it was consensual and free of harassment because of the difference in power and authority between the employees when one is a subordinate of the other. In these situations it is prudent of the employer to either transfer one employee or restructure the reporting hierarchy between the employees so one is not the direct subordinate of the other.
Additionally, workplace romances put an employer at risk for discrimination claims based on sexual favoritism. The Equal Employment Opportunity Commission (“EEOC”) refers to workplace relationships as “sexual favoritism” and outlines the boundaries between what is permissible and what is prohibited. This type of sexual favoritism arises when there is a sexual or romantic relationship between two employees, and that relationship benefits the members of that relationship while also adversely affecting a third party’s employment. For example, if a supervisor promoted an employee that she was having a relationship with, the other employees who were qualified for the promotion might feel they were passed over due to sexual favoritism between the supervisor and her partner.
The EEOC issued Policy Guidance on Employer Liability under Title VII for Sexual Favoritism with the purpose of providing guidance on when employers can be liable for violating Title VII based upon sexual favoritism. The EEOC expressly states, “Not all types of sexual favoritism violate Title VII.” For example, the EEOC found that an “isolated instance” of sexual favoritism towards someone’s significant other may be unfair it may not be found to violate Title VII, because it does not discriminate against men or women based upon their gender. The gender of the individual passed over was irrelevant o the decision to show favoritism.
However, if a person is “coerced into submitting to unwelcome sexual advances in return for job benefits” this would qualify as sexual harassment. This would be example of quid pro quo (this-for-that) sexual harassment and the employer could be liable to both the employee who was coerced into submitting to sexual harassment and other employees who did not receive job benefits because they refused to submit to such advances. Additionally, this type of favoritism is not based on a relationship between two people but is often the result of gender.
Additionally, the EEOC found that widespread favoritism could lead to a Hostile Work Environment being created. The EEOC points out that this type of widespread bias towards a protected class (in this case either men or women) leads towards a hostile work environment where employees are forced to “play along” with the bias and favoritism. The EEOC illustrated this type of widespread sexual favoritism by the example of when a manager views women employee as “sexual play things” which “creates an atmosphere that is demeaning to women.” In this type of situation both men and women who find this environment offensive could support a claim of hostile work environment if they could show the conduct is severe and pervasive enough to affect their working conditions.
Accordingly, employers should be careful to ensure their policies addressed sexual favoritism, and expressly prohibit favoritism and unwelcome advances in the workplace and have proper procedures for reporting any violations of these policies. Another way to limit this type of sexual favoritism in the workplace is to place policies which limit dating between supervisors and their subordinates, since the imbalance in authority leads to the opportunity to express favoritism.
Employers also need to be aware of when a relationship between co-workers has ended. If the relationship does not end amicably then an employee may feel resentment and attempt to take adverse employment actions against their former companion or attempts at reconciliation by one party could be viewed as sexual harassment by the other party. Therefore, an employer should also make sure an employee notifies the employer once the relationship ends and of any conduct that is in violation of the employer’s sexual harassment policies.
A good policy can protect an employer from litigation arising out of workplace romances, however, a poorly drafted policy could easily subject an employer to liability. Therefore, it is important that employers consult with their attorneys to ensure their policies are adequate to diminish their liability for sexual harassment or gender discrimination claims arising from such workplace romances.
Contact Pozzuolo Rodden, P.C., Philadelphia employment attorneys to answer all your employment related questions.