What to Do When Workplace Relationships Lead to Harassment

Sexual harassment prevention and response are hot topics right now, but HR professionals may still be wondering how to navigate the less-clear issues of workplace friendships and office romance. What behavior is acceptable and what goes too far?

Unwanted physical contact, repeated sexual comments or watching sexually explicit materials at work are egregious behaviors that could result in a finding of harassment, said Sandra Jezierski, an attorney with Nilan Johnson Lewis in Minneapolis.

"The stakes are even higher for an employer if a supervisor sexually harasses a subordinate and the subordinate is subject to an adverse employment action, such as termination or demotion," she said.

But other conduct may be difficult to categorize. When does joking go too far? What happens when a consensual office romance ends?

Workplace behavior is on such a continuum that sometimes it's hard to say what is OK and what isn't, said Amy Polefrone, SHRM-SCP, president and CEO of HR Strategy Group LLC in Ellicott City, Md.

"What may be acceptable one day may not be acceptable the next day," said Frank Chernak, chair of the labor and employment practice at Montgomery McCracken Walker & Rhoads in Philadelphia.

It is important to note that courts will look at events from the victim's point of view, not the alleged harasser's, Jezierski added. In other words, saying "I didn't mean it" or "It was just a joke" are not defenses to a claim of harassment. Rather, the court will look at whether the victim felt harassed and whether a reasonable person in the victim's position would feel harassed.

What Exactly Is Sexual Harassment?

Workplace sexual harassment is illegal under Title VII of the Civil Rights Act of 1964. Additionally, many states have their own anti-harassment rules that may mirror federal law, provide more employee protections or apply to smaller businesses. (Title VII applies to businesses with 15 or more employees.)

In general, anti-harassment laws prohibit unwelcome sexual conduct that is severe or pervasive and creates a hostile work environment. People in positions of power can't make sexual demands in exchange for a promotion or other employment benefit. (That's sometimes called "quid pro quo" harassment.)

The Equal Employment Opportunity Commission says sexual harassment can occur in a variety of situations. Employers should note that:

• The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
  
• The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker or a nonemployee.
  
• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  
• The victim doesn't have to be fired or otherwise suffer economic injury for the harassment to be considered unlawful.
  
• The harasser's conduct must be unwelcome.
  

Beyond sexual harassment, conduct that addresses, identifies or singles out people based on protected traits like age, disability, gender, national origin, race, religion and sex is usually not acceptable in the workplace, Chernak noted.

Should Employers Ban Office Dating?

Harassment can stem from an office romance gone sour, but it may be unrealistic for employers to ban intraoffice relationships altogether, Polefrone said.

Fifty-seven percent of respondents to Vault's 2017 Office Romance Survey said they have had a workplace romance.

[SHRM members-only HR Q&A: What are the pros and cons of a consensual relationship contract?]

In most situations, co-workers can ask an employee to go out on a date. "But that doesn't mean the employee can ask a co-worker out on 10 straight days," Chernak said. "At some point, the friendly asking out on a date can become harassment."

Managers need to be particularly careful about dating any employees simply because of the hierarchy, Polefrone noted. "Their position of power can be abused whether it's a direct supervisory relationship or not."

Even if the manager and the employee don't have a reporting relationship, a romantic relationship can be problematic. Consider whether the manager is close to the worker's supervisor, Jezierski said. Does the worker feel obligated to accept the invitation or risk losing his or her job? "Defining behaviors to be sexual harassment or not depends on so many factors, including power dynamics, unrelenting requests, and fear of reporting or backlash," she added.

The employer should know about such a relationship and should ensure that the manager has no way to affect the terms and conditions of the worker's employment, Chernak said, noting that additional issues arise if there's an appearance of favoritism because of the relationship. 

An employer should consider adopting a "romance in the workplace" policy so that employees are required to provide the employer with the information it needs to protect itself and its workers, he said.

What Is HR's Role?

The HR department should have an open-door policy to make it comfortable for employees to come forward to say they are dating. "If there is a culture of fear, all the policies in the world won't work," Polefrone said.

Sexual harassment training is also important so that employees understand what behaviors are unacceptable. "That training should extend to every employee in the organization, from workers, managers, human resources personnel, all the way up to the C-suite," Jezierski said.

Supervisors must be trained on how to handle complaints and should understand what situations require them to notify or involve HR, Chernak said. In addition to providing training, companies should have clear anti-discrimination, anti-harassment and anti-retaliation policies.

In the face of the #MeToo movement, many employers are also auditing their reporting procedures and investigation processes, Jezierski noted.

When an office romance ends poorly or misconduct occurs, the onus is on the company to resolve the issue, Polefrone added.

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