The underpinnings of workplace sexual harassment have not changed since the dawning of civilization. However, one additional area of risk that has grown substantially over the past several decades are office romances. Overlaying these relationships are both sexual harassment laws and numerous potential problems for employers: productivity deficiencies, conflicts-of-interest issues, co-worker dissatisfaction, adverse impacts on morale, favoritism, legal liability for superior/subordinate relationships and hostile work environments that can directly and indirectly affect the workforce.
What is an employer to do? Given the pervasive spread of recent allegations of sexual harassment from Hollywood to Washington, it seems warranted to revisit sexual harassment laws, best practices for employers, and a more recent approach to office romances.
Sexual Harassment Laws
Federal, state and local (municipal) law govern sexual harassment liability in most jurisdictions. There are two main categories of sexual harassment claims: quid pro quo (this for that) and hostile work environment. The former occurs where unwelcomed sexual conduct is either an explicit or implicit term or condition of employment, such as offering better work for sexual favors (e.g., the recent Weinstein scandal), and arises where there is a dominate party relative to a subordinate party, such as supervisor to subordinate. The latter (hostile work environment) occurs when unwelcomed sexual conduct (e.g., comments, touching, jokes, etc.) unreasonably interferes with an individual’s work performance or is sufficiently severe to create an intimidating, hostile or offensive work environment.
At the federal level, employers are vicariously liable for claims of quid pro quo harassment; there is little an employer can do to defend against such claims. If the harasser is not a supervisor, then the employer will not be liable for harassment unless the employer is negligent — meaning it did not prevent the harassment. On the other hand, if an employer has proper policies and procedures in place for reporting and addressing claims of sexual harassment, it may well have a defense against a hostile environment claim.
Best Practices — A Primer To Insulation From Liability
The following are several key steps all employers should implement:
- Establish, disseminate and require employees to acknowledge a strong, legally compliant anti-harassment policy — essentially banning any form of sexual (or any other form of) harassment (e.g., harassment based on race, religion, sexual orientation, etc.)
- Ensure that employees understand what exactly sexual harassment is, what the employer's policy is and how to handle these issues in the work place. Provide all staff with anti-harassment training, which is invaluable on all levels.
- Establish a reporting system, including multiple avenues for affected employees to bring these issues to the attention of human resources, management and/or senior leadership, including a zero-tolerance policy such that all personnel must report and the company investigate sexual harassment claims
- Investigate, investigate, investigate. All complaints — no matter how trivial or incredible they may seem — should be fully and properly investigated and resolved. Witnesses should be interviewed, other evidence considered and determinations made as to any disciplinary action needed. The process should be as confidential as possible without compromising the investigation itself.
- Document, document, document. All aspects of the complaint, reporting and investigative process should be documented, including the investigation findings. The same should be properly maintained in the event of inquiry into the underlying decision.
- Non-retaliation; immediate action. All policies, conduct and investigative personnel should make clear that: no employee or participant will be subject to any form of retaliation for their cooperation; retaliation will not be tolerated and itself can lead to discipline up to and including termination; and all investigations will be prompt, thorough and result in appropriate corrective action (again, including termination) if warranted.
Dating Policies, Love Contracts And Zero-Tolerance Policies
Many employers believe that sexual harassment policies must prohibit any form of dating, or fraternization, to be compliant with best practices. Given the proliferation of relationships emerging from the workplace, many practitioners believe such policies are not realistic. Instead, there has been a trend toward in allowing dating not only amongst co-workers, but also in dominant/subordinate relationships — provided the relationship is fully disclosed to the employer and documented in a consensual relationship agreement. Such agreements or “love contracts”:
- Are intended to be signed by the consenting adults, confirming at minimum: (1) the relationship is voluntary and consensual, a product of free choice (not coercion or duress) and does not involve the business or unwelcome sexual advances; (2) recognition and acknowledgement of the company’s sexual harassment policies; (3) the relationship may be ended by either party at any time without adverse consequences; and (4) consent to procedures to resolve any post relationship disputes, including through binding, confidential arbitration.
- Have not been tested by the courts, but have gained in popularity in the legal community, as an alternative to terminating, for example, productive employees. The belief is that the contracts chill the likelihood, and decrease the value, of any sexual harassment claim and can be used to compel arbitration of such claims (where, for example, the parties can waive their rights to punitive damages). Many legal scholars question, however, the value of “love contracts,” including because they may not combat quid pro quo claims, are subject to collateral attack (e.g., a product of continuing sexual harassment where consent was never freely given), and could trigger privacy concerns. Further, as to quid pro quo claims, some states’ laws, like Illinois, eliminate the element of consent in the event of a superior to subordinate sexual harassment claim.
Ultimately, sexual harassment law, claims and liability can create a sticky wicket. We encourage all of our clients to review their risk exposure and work with seasoned counsel to ensure their organization implement state of the art protections, as detailed above. Employers must also consider the realities of the workplace, and ensure that all issues raised are handled properly and with sufficient training, in order to minimize liability and disruption to the workforce.
Fred Mendelsohn is Partner at Burke, Warren, MacKay & Serritella, P.C. in Chicago. For distributors seeking further information on this topic, or to generally discuss the subject matter of this article, contact Fred Mendelsohn at [email protected] or at 312-840-7004.
