It is not surprising that sparks may fly in the workplace, considering that most Americans spend more time at work than they do anywhere else. And as Valentine's Day approaches, workplace romances are especially likely to flourish. Employers should be prepared to address issues that arise when Cupid's arrow goes astray.
When Do Workplace Romances Become A Problem?
In California, the Fair Employment and Housing Act ("FEHA") requires any employer with at least one employee (i.e., every employer) to prevent harassment. Generally speaking, nothing in the law prohibits employers from allowing employees to have romantic relationships with their co-workers. As a practical matter, however, allowing romantic relationships at work invites the risk of having an unproductive workplace and exposes employers to significant liability. This is particularly true for consensual romantic relationships between a supervisor (someone with substantial independent authority over a subordinate's employment status) and a subordinate.
The classic case of employer liability arising out of a romantic relationship between a supervisor and a subordinate is the case of the romance that goes sour. An employer can be liable if the subordinate was subjected to a hostile work environment at the hands of the supervisor. In such a case California would impose automatic liability on the employer (liability without regard to notice or fault). In other words, employers are on the hook regardless of whether they knew that the supervisor was subjecting the supervisor's ex-Valentine to a hostile work environment.
And employers may be liable for harassment not just to an employee once involved in a consensual romantic relationship, but also to other employees who have witnessed the relationship. The California Supreme Court has recognized a claim of sexual harassment brought by two women because they had been offended that other women received preferential treatment through sexual cooperation with their boss. The Supreme Court noted that an isolated incident of favoritism on the part of a supervisor toward the employee with whom the supervisor had a consensual relationship ordinarily would not constitute sexual harassment, but when "sexual favoritism in the workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed."
What Is An Employer To Do?
Employers must prevent harassment in the workplace and take immediate and appropriate corrective action when harassment occurs.
Employers must display a poster in the workplace and provide employees with a Department of Employment and Housing ("DFEH") fact sheet, or equivalent information, available on the DFEH website, or here.
Additionally, employers with 50 or more employees must provide two hours of interactive sexual harassment training to their managers and supervisors every two years. This training must be provided within six months of the supervisor or manager assuming their position.
If the consensual romantic relationship takes a turn for the worst, employers must have procedures in place so that employees can file complaints of harassment.
If a complaint is made, employers must timely and adequately investigate, and address the complaint.
Employers should also examine whether to institute (or revise) policies regarding personal relationships to avoid conflicts among employees who engage in romantic relationships in the workplace.
Each employer and business culture is different. As a general rule of thumb, consensual romantic relationships between supervisors and subordinates are not a good idea.
Employers can use this Valentine's Day season to ensure that their anti-harassment policies, non-retaliation policies, and training are all up to date.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.