Cupid’s Arrow Can Be Painful

Employers Should Update Policies on Office Dating, Sexual Harrassment

By ANNIE E. LAJOIE, Esq. and TANZANIA C. CANNON-ECKERLE, Esq.

Jill arrives at work on Valentine’s Day to find a box of chocolates, a teddy bear, and a card on her desk. Smiling, she reaches for the card. Her smile fades as she identifies her admirer.
Valentine’s Day is a reminder of a common challenge many employers face: the office romance. According to a 2013 survey, more than 50% of the workforce has participated in an office romance on at least one occasion. Even though these relationships appear to be somewhat common in the workplace, they can still be problematic.
Often these workplace relationships can make some employees uncomfortable, can create the perception of favoritism for certain employees over other employees, and in extreme cases can create a hostile work environment. Then there are the ramifications of a workplace relationship and breakup — like a possible multiple-plaintiff sexual-harassment claim.
For example, let’s say Jack and Jill are constantly visiting each other. Sandra, whose desk is next to Jill’s, thinks the two are spending too much time flirting and consequently not getting enough work done. Sandra also feels constantly distracted and very uncomfortable due to their inappropriate conversations, including the sexually explicit comments from Jack regarding Jill’s body, all of which Jill is obviously enjoying. That was until Jack and Jill broke up.
Jill moves on, but Jack is intent on getting her back. He has continued to engage in the once-welcomed conduct, but now, according to Jill, it is unwelcome. Jack constantly stops by Jill’s desk and makes frequent sexual comments about her body. He sends her flirty messages and pictures of himself on the company’s e-mail. Jill asked him to stop, but he refuses because he knows their love is still strong, which frightens both Jill and Sandra. Making things worse, Jill has started to date another co-worker, Bob.
Jack and Bob used to work well together, but ever since Jack found out that Jill is dating Bob, Jack has been openly hostile to Bob. Sandra, all the while, has had to endure the whole of the conflict.
In this example, there are multiple labor and employment issues. Though the Jack and Jill relationship and breakup might be considered a foreseeable debacle, Sandra’s impending hostile-work-environment claim based on sexual harassment and workplace violence may not be so predictable. The major question is, how does an employer continue to be open to the activities of such a festive occasion as Valentine’s Day, but also protect its employees from being uncomfortable and its own interest in remaining free of litigation?
The answer: it depends. But prevention is key. An employer has an obligation to ensure that its workplace is free of sexual harassment. An employer’s best defense against sexual-harassment claims is implementing a comprehensive sexual-harassment policy, which has a procedure for reporting harassment, sexual-harassment training for all employees, and regular supervisor trainings.
Next, because Valentine’s Day is the perfect storm for misunderstandings, it would be best if an employer has relevant rules and policies in place that govern holiday activities in the workplace and other acceptable and unacceptable behavior. Employers should already have the necessary policies and procedures in the employee handbook.
A prudent employer may just want to send a gentle reminder to the workforce stating that, when employees choose to recognize Valentine’s day, they should keep in mind that all of the employer’s policies and procedures, as found in the employee handbook, still apply. Then the employer must enforce it.
An employer may also want to implement an office romance policy, in addition to its sexual harassment policy. This may seem like overkill, but employers can never be too safe. What some employees find to be fun and flirty comments, cards, e-mails, text messages, or jokes, other employees may consider offensive and inappropriate. As co-workers increasingly communicate via social-media sites, there are even more opportunities for problems. The employer’s social-media policies should also refer to the sexual-harassment policies and the office-romance policy, if one exists.
Valentine’s Day is associated with love and romance; therefore, an innocent gift or card can easily be misinterpreted. This issue is compounded by the fact that employees may choose adult themes for their Valentine’s Day cards. The outside of Jill’s card might say, “On Valentine’s Day, remember…” As Jill opens her card, she sees it is from a co-worker, Cal, who regularly asks her to go out on a date with him, and the inside of the card says, “… candy is dandy, but sex won’t rot your teeth! So what do you say?”
Matters are further complicated when such a card is given to a subordinate by a supervisor. While gifts between co-workers are troublesome, gifts between supervisors and employees are even more problematic. For instance, if Cal is Jill’s supervisor, Jill may feel pressure to date Cal so her work will not be negatively affected. Other employees may also feel that Jill is getting preferential treatment.
Even if the Valentine’s card contains a more innocent message, and Cal thinks it simply shows how much he appreciates and values Jill’s work, Jill might interpret it as his way of saying he wants to be involved with her romantically.
With Valentine’s Day fast approaching employers would be wise to shield themselves against Cupid’s arrow by reviewing their office-romance policy and their sexual-harassment policy with their employees.

Annie E. Lajoie, Esq. specializes exclusively in management-side labor and employment law at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected].
Tanzania C. Cannon-Eckerle, Esq. specializes exclusively in management-side labor and employment law at Royal LLP; (413) 586-2288; [email protected]