Dear HR Doctor,
I am a department director who has been watching an interoffice romance bloom over the last few months. In fact, I believe these people may be having a lunch-hour rendezvous. I'm getting concerned about this situation, especially since one person is married. What are my responsibilities, if any, as they relate to sexual harassment laws? Also, would it make a difference if one of the employees is a supervisor?
Signed,
A Worried County Director
Dear Worried,
Your problem is one that has plagued many managers since the advent of sexual harassment laws. While managers don't want to meddle in their employees' personal relationships, they do want to avoid potential liability for the employer. A review of some basics might be helpful. As most of us know, the legal definition of sexual harassment is:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
· submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of a person's job, pay or career
· submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting that person, or
· such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile or offensive work environment.
When applying this definition to the situation that you describe above, it appears that there is no cause for concern since none of the elements of the definition are present, and, generally, most workplace romances are not a concern.
However, each situation needs to be accurately assessed with a clear understanding of the two types of sexual harassment. They are:
· the elements of a hostile work environment, such as unwanted, inappropriate and offensive sexual advances, and
· "quid pro quo," which is either the loss of a tangible job benefit, promotion or employment because an employee refuses to submit to a supervisor's demand for sexual favors or the granting of tangible job, benefits promotion or employment in exchange for sexual favors.
Let's apply each type to your situation, starting with hostile environment.
From your description it sounds as though right now both employees are consenting to the relationship. There's no hostile environment, and no unwanted or offensive behavior. Therefore, there is no possibility of alleged sexual harassment, right? Well, yes and no.
There may be no basis for a sexual harassment claim right now, but what happens if one of the employees decides to end the relationship in the future while the other wants it to continue? Many times what starts out as consensual turns into harassment because one employee wants the relationship to continue while the other does not. As a manager, you must be alert to these problems and be prepared to take action.
While it's true that to be legally liable, an employer needs to have "notice" that an employee is being subjected to a hostile work environment, this notice may not come directly from the harassed employee. In fact, a suing employee may claim that there were many subtle signs that should have alerted you.
Since, many managers at your level aren't privy to office gossip and don't normally know the status of relationships, you need to watch for other signs.
Some warning signs include radical changes in an employee's work habits, anti-social behavior, discomfort around certain individuals, asking if the employer has a sexual harassment policy, reluctance to working long hours, or an increase in absenteeism. Once you have either direct or indirect notice, you must take corrective action immediately.
Next, we need to assess the facts to determine if there could be quid pro quo harassment.
Normally, it is very difficult for quid pro quo harassment to take place between co-workers because peers usually do not have control over the working conditions of another.
In your question, you asked if your concern should be greater if one of the employees is a supervisor. The answer is, yes! By adding a supervisor into the mix, there can be big problems.
Since supervisors do have control over their subordinates' working conditions, it can be especially dangerous for a supervisor to enter into a consensual relationship with a subordinate.
First, there is always the possibility that the relationship will end badly. If the employee breaks off with a supervisor, he or she may later claim that any negative action which the supervisor takes against the employee is because the employee ended the relationship.
On the other hand, if the supervisor ends the relationship, the subordinate may claim that they were given favors for as long as the relationship continued; but the favors ended as soon as the supervisor ended the relationship.
Also, in quid pro quo harassment, the employer is assumed to have notice so it cannot be used as a defense. When you suspect that a relationship between a supervisor and a subordinate has deteriorated, you must intervene swiftly and with great care.
Furthermore, when a supervisor and subordinate are involved in a relationship, other subordinates may claim that they were not given the same advantages that the involved co-worker enjoyed. This creates jealousies and destroys morale. Any way you look at it, the situation is unacceptable and totally avoidable.
Many employers feel that they are protected from allegations of supervisor/subordinate favoritism because they have nepotism policies. However, nepotism policies only apply to employees who are related by blood or marriage. Nepotism does not apply to dating relationships between unmarried employees.
More and more employers are adopting policies prohibiting any dating or romantic relationships between a supervisor and his/her subordinates. Prevention is the key to avoiding allegations of this type of quid pro quo harassment.
If the relationship you describe is between co-workers, be mindful of possible changes in it. If it is between supervisor and subordinate, you may want to get involved now. Also, consider adopting a policy which prohibits such relationships.
(The HR Doctor was written by Verna McDaniel, human resources director, Washtenaw County, Mich.)
(Questions for the HR Doctor should be sent to: HR Doctor, County
News, 440 First St., N.W., Washington, DC 20001, fax: 202/393-2630, e-mail:
countynews@naco.org.)