For those romantics out there, February means Valentine’s Day! And, with Valentine’s Day comes overtures of romantic feelings (assuming the best of intentions) for your significant other or for those with whom you want to take the next step. For decades, these overtures were typically accompanied by a card, flowers, chocolates, a stuffed animal, or some similar expression of affection.
But, that was then, and this is now. In addition to such formal expressions, we now are able to effortlessly express our feelings through emails, text messages, social media, and other electronic means of communication. These electronic expressions may be well-received and/or be part of consensual relationships. However, even though these expressions may be well received and even though some may lead to or continue consensual relationships, an extremely high percentage of all consensual romantic relationships end.
Electronic communications, both in and outside the workplace, play a significant role throughout this continuum, from expressed feelings, rejected feelings, consensual relationships, and relationships that have ended. As a result, employers have been confronting, with increasing regularity, the impact of these communications in the workplace. With Valentine’s Day around the corner, there is no better time to ensure that your policies, agreements, and training properly minimize employer liability associated with these communications.
Fraternization and Technology Policies
Realistically, employees have and will continue to engage in romantic and sexual relationships in the workplace. According to a survey recently conducted by Vault.com, 56 percent of business professionals have engaged in a workplace relationship. Accepting that such relationships will and do exist in the workplace is a first step. But, beyond accepting that these relationships exist, employers must implement policies regulating these relationships in a manner that best fits within their particular workplace culture. There is no one-size-fits-all answer to fraternization and technology policies addressing workplace relationships.
That said, in developing such policies, employers should consider both the legal implications associated with sexual harassment and retaliation claims under Title VII of the Civil Acts of 1964 and similar state and local laws, as well as the practical implications associated with favoritism stemming from consensual relationships in the workplace. At a minimum, a good fraternization policy prohibits romantic or sexual relationships between supervisors and direct subordinates. Beyond that, with respect to romantic and sexual relationships among co-workers, the policy should define prohibited and permitted actions and the consequences for violation of the policy, often incorporating much of what may already be covered in a standard, well-written anti-sexual harassment policy.
Additionally, with respect to technology, employers should address how these prohibited and permitted actions under the fraternization policy play out through email, texting, and social media. A good technology policy regulates the use of these technologies and takes steps to educate employees on their use in the workplace. At the same time, a technology policy should minimize employees’ expectations of privacy in the use of, at a minimum, employer-provided devices for the purpose of emailing, texting, and communicating via social media sites, and in addition, either as part of the technology policy or as part of a separate bring your own device policy, address employees’ access of employers’ email systems on personal devices. In most states, employer-provided phones and computers remain the property of the employer, and communications and Internet usage with these devices remain subject to employer monitoring. The technology policy should expressly inform employees that they have no expectation of privacy, and alert employees to the employer’s right to monitor their usage on such employer-provided devices.
Romance agreements, or “love contracts,” have been in existence for decades, but rarely used. These agreements supplement, but do not replace, employer policies on anti-harassment, fraternization, and technology. In general, romance agreements document that an employer has been advised of a consensual relationship among co-workers. Typically, in these agreements, the employees acknowledge that (1) the relationship is consensual, voluntary, and welcome; (2) either employee has the right to end the relationship without fear of reprisal; and (3) the relationship will not affect the workplace or the employees’ work performance. Even though these agreements may not be legally enforceable, when used in conjunction with an employer’s other policies, they protect the employer, as well as potentially the employees involved in the relationship, against liability for claims of sexual harassment, retaliation, and other claims arising from failed relationships.
Since the Supreme Court’s decisions in Faragher and Ellerth in the late 1990s, if not earlier, employers have conducted training on anti-sexual harassment and related topics as standard best practices. All managers should receive periodic training on the employer’s anti-harassment and retaliation policies, and such training programs should incorporate the relevant fraternization and technology policies as these policies relate to the prevention of liability for sexual harassment claims.
The topic of consensual relationships, and the pitfalls associated with the failure of such relationships, should be addressed as a part of any effective training program. And finally, the overlay of technology, especially email, texting, and social media, must be explored. Similarly, all employees should receive training on similar topics, yet with a different emphasis than the training that is provided to managers. In the end, once aware, the training may deter supervisors, and possibly employees, from engaging in workplace relationships in the first place, tempering “the heart wanting what it wants.”
This year, employees will enjoy Valentine’s Day as they normally do. Cards, flowers, gifts . . . in addition to emails, texts, and social media posts will be exchanged. Prior to this year’s season of “textual feelings” in the workplace, consider revisiting every employer’s best companion in minimizing liability stemming from sexual harassment and related claims: workplace policies, romance agreements, and training.