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Thursday, May 17, 2012
Feature: February 2006
Playing with fire
Intrigue, power and risk: the ramifications of workplace romance
Story by Michael P. Scott
Once upon a time, a strictly professional relationship between an executive and one of his employees evolved into a six-month affair that ended abruptly with the employee claiming she was pressured into the affair since the executive was the one controlling her salary increases.
The board, upon being notified, issued a warning to the executive and advised the company’s legal counsel to create an agreement preventing the executive and the employee from working together without a third party present.
Later, the employee was transferred, which led her to file a claim alleging that sexual harassment occurred and that the job transfer was a direct result of her persistent complaints about the coerced relationship.
Company officials, however, maintained that the romance between the executive and the employee was not sexual harassment and that the employee’s transfer, which was for the purpose of separating the two, was in no way a retaliatory move.
“The merging of the personal with the professional
always has the potential to create messy boundaries.”
— Marilyn Irvine, owner-principal, Executive Management Consultants
Relationship experts generally agree that work environments are ideal breeding grounds for romantic encounters. Many attribute this to the increase in the number of women who have entered the workplace and to the growing number of hours the average American spends at work. In addition, offices often provide friendly, social settings in which coworkers regularly eat lunch together, engage in weekend activities together, and even travel together.
Survey data from the American Management Association seems to support the acceptance of romantic encounters in the workplace. Nearly 96 percent of the association’s members said it was O.K. to date a coworker, and 30 percent admitted they’d done it themselves.
Of the 31,000 men and women polled in perhaps the most comprehensive study done on intra-company trysts, Janet Lever, a professor of sociology at California State University, Los Angeles, found that six out of 10 respondents admitted to having an affair. Two-thirds of those surveyed also said that their offices could be characterized as having lots of flirtation.
“Every study that I’ve reviewed, including those outside of my direct research, seem to suggest that workplace romance is alive and well,” says Lever, whose survey was conducted in conjunction with msnbc.com. “There are all sorts of reasons to expect this to continue in the future.”
Lever believes workplace romance is acceptable and, in most cases, can be good for the workplace.
“Workplaces are a great place to meet someone. It provides a unique environment to get to know what another person is all about and see their character as well as how they respond under pressure,” says Lever.
Lever believes problems can arise when a direct-reporting relationship occurs at work, particularly when one person is evaluating another.
“There is no doubt that problems can arise when there is one person working for another, and certainly the argument could be made that those who are in this situation should disclose the relationship to the company. It is important to keep in mind, though, that the majority of workplace romance situations are perfectly legitimate because they don’t involve a direct-reporting relationship,” says Lever.
While intimate relationships seem to have a steady allure in today’s workforce, the ramifications of such encounters can be dicey.
“While having an intimate relationship or encounter with someone in the workplace may seem quite appealing, this merging of the personal with the professional always has the potential to create messy boundaries,” says Marilyn Irvine, the owner-principal of Executive Management Consultants, a human resources management and organizational development firm located in Fair Oaks.
As a licensed therapist frequently sought out by organizations facing complex workplace issues, Irvine has seen her share of office affairs that have led to troubled waters.
“Affairs within the work environment present a lot of interesting dynamics, including secrecy, intrigue, power and risk. As a result, resolving these situations can become rather tricky, particularly when they extend beyond an employer’s knowledge of how to deal with them,” says Irvine.
“While employees tend to understand the extremes,
it’s the middle ground that is confusing to most.”
— Ruth Jones, professor, McGeorge School of Law
A growing number of employers, ever concerned about the increasing prevalence of workplace romances, are asking their employees to sign “love contracts,” liability waivers that protect the company in the event that a failed relationship occurs.
When a partner is romantically involved with a staff member, the remaining partners will often seek out private legal counsel to indemnify the group against a legal claim if the relationship sours.
“A relationship between two coworkers that suddenly goes bad not only presents a number of legal issues, but can create a great deal of drama and tension that can significantly affect morale in the workplace,” says Jenny Mah, a Sacramento-based human resources consultant with more than 32 years of experience working with employers nationally and internationally.
“I’ve personally encountered a number of situations where an employee has received dead flowers after a breakup, or security had to be called in because of the potential for violence. A situation like this can quickly veer out of control if the employer fails to handle it properly,” says Mah.
For many employers, relationships in the workplace amount to nothing more than bombs waiting to detonate.
“From a legal standpoint, the issue is not necessarily about the sexual relationship, but the power to exert influence over the terms and conditions of someone’s work environment,” says Ruth Jones, a professor at University of the Pacific’s McGeorge School of Law.
There are two types of harassment: “Quid pro quo,” which involves situations in which a person’s job status, chance for promotion, salary and other factors are conditioned on receipt of sexual favors, and “hostile environment,” in which a pattern of unwelcome sexual conduct, behavior or activities creates an environment that inhibits an employee’s ability to work.
A recent verdict handed down by the California Supreme Court makes the legal waters even murkier. The court ruled in Miller v. Department of Corrections that employees can sue by alleging widespread “sexual favoritism” — a hostile environment for employees not engaged in sexual affairs with their supervisor.
In other words, if a supervisor engages in consensual sexual relationships with some employees and those employees receive extra benefits such as salary increases and promotions, the employees who are not involved in these relationships and therefore fail to receive the benefits of them would have cause for legal action against their employer.
Given the fact that juries in California sexual harassment cases often order payments that run into the hundreds of thousands of dollars, employers must remain vigilant to the impact of relationships in the workplace and take steps toward ensuring that appropriate measures are in place to minimize their liability.
Facing these issues, however, can be akin to walking on eggshells. “The confusion with all of this has led some companies to enact strict policies on dating in the workplace because it spares them some of the difficulty of sorting through what is consensual and what is not,” says Jones.
There are a number of catalysts for a sexual harassment claim. Employees frequently allege that they were forced into what may have appeared to have been a consensual relationship.
An intimate joke or comment to someone of the same sex; an inviting glance from a coworker; or even an employee who, while at work, is repeatedly asked out on a date by an outside package-delivery driver — all are examples of the many situations that can give rise to a sexual harassment charge.
Employers in the state of California have a duty under both federal and state employment-discrimination laws to not only prevent sexual harassment, but also to promptly respond to instances of harassment when they arise. Companies that fail to follow-up on a complaint can be found liable for damages.
What makes this particularly challenging for an employer is the fact that an employee isn’t obligated to share the complaint with his or her company. Rather, employees can go directly to the Department of Fair Employment and Housing, which governs many of these cases on a state level, and file a claim against the company as well as any employees engaged in the harassing behavior.
“A relationship that goes bad not only presents a number of legal issues,
but can create a great deal of drama and tension.”
— Jenny Mah, human resources consultant
Many employers have established workplace policies and practices to educate employees on how workplace harassment complaints will be handled and to encourage them to report any and all instances of harassment to their supervisor or a human resources representative.
“The biggest mistake that many employers make when sexual harassment is being alleged is failing to address the situation in a timely manner through prompt follow-up and an effective investigation,” says Terry Wills, a partner with Cook Brown, an employment-law firm based in Sacramento.
Employers must make every reasonable attempt to ensure that the harassment being alleged stops and never occurs again. In some situations, this may be achieved by disciplining or even terminating the accused if the outcome of the investigation warrants this. Or it may involve initiating some form of alternative work arrangement or transfer for the accused in an attempt to restrict access between the two parties.
Wills believes that a major key to successfully resolving sexual harassment complaints is the use of third-party help to ensure that the case is handled objectively.
“Employers should definitely consider using an outside, neutral investigator to gather key findings for the case,” says Wills. “It is generally not a good idea, however, for employers to use the same law firm that already represents them in employment-law matters because there may be a built-in, inherent bias toward the management team. This can create a conflict of interest relative to ensuring an impartial, proper investigation.”
While California employers have always had a duty under the Fair Employment and Housing Act to prevent sexual harassment, legislation that took effect on Jan. 1, 2005 requires employers to provide two hours of sexual harassment training for all supervisors by Jan. 1, 2006, and every six months thereafter for all new supervisors.
While some business leaders applaud the merits of this initiative, others say it simply amounts to a booming opportunity for trainers, many of who have little substantive knowledge regarding sexual harassment.
It is for that very reason that Ralph Yanello, CEO of the LawRoom (thelawroom.com), a Web-based employment-law firm headquartered in Walnut Creek that assists employers in complying with the law, believes that employers must be very selective about the training vendor they choose.
Unlike many off-the-shelf programs, a team of lawyers with specific expertise in areas such as sexual harassment carefully crafts the LawRoom’s curriculum. Yanello extols the value of Web-based training as a way for employers to lighten the burden of meeting this new requirement.
“One of the challenges that employers face with the traditional live classroom training is the number of employees who may be absent from a session for any number of reasons,” says Yanello.
“Online training can be offered in a self-paced, interactive format that ensures consistency in how the message is being delivered and provides scheduling flexibility for each individual user.”
Yanello also points out that a Web-based system offers the ability to collect key documentation around who was trained, how they were trained and when they were trained.
“A good system provides a mechanism for records to be electronically stored. This information could become vital to an employer when defending a sexual harassment case,” says Yanello.
Ruth Jones believes that, in light of this new training mandate, business leaders ultimately play a key role in fostering open dialogue about relationships in the workplace.
“Many employers have yet to recognize that there is a difference between their policies, which govern workplace behavior, and the publicly understood expectations of their employees. While employees tend to understand the extremes with respect to what is professional versus unprofessional behavior, it’s the middle ground that is confusing to most.”
Jones believes honest communication and exchange is critical to dealing with the unpredictable dynamics of workplace relationships.
“What we are talking about here is basic respect for one another. An employer’s stated policies and training program should go hand in hand with nurturing a culture which encourages sharing, learning and exploring, one that moves the organization towards developing a greater consensus as to what is and isn’t appropriate as far as relationships in the workplace.”
