We know it’s common for co-workers to date. Sometimes one of the co-workers is dating someone that they supervise. What happens when co-workers do decide to date? Some employers prohibit workplace relationships. What happens when one of them supervises the other? What happens when the relationship sours? Now for the multi-million dollar question: What happens when the supervisee alleges that the relationship was really sexual harassment by the supervisor? I’ll bet I have your attention now, so read on…
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What are some issues you should address when employees date each other?
First, how might their work and your other employees be impacted by the relationship? If one employee is supervising the other, will the supervisor be able to remain objective? What happens when s/he is evaluating that employee’s performance or needs to discipline the employee? Will the supervisor favor that employee over his or her other direct reports? What if the couple is involved in a conflict? Will the supervisor use his or her position to control or manipulate his/her significant other? If one of them has issues with anger or a propensity toward violence, is there now a greater risk of an angry outburst or even violence in your workplace? How else might that conflict impact work performance or the dynamic in the workplace in general? If/when they break up will they still be able to work together? Will there be drama and will others in the workplace be unwillingly caught up in it? For these reasons, many employers allow dating, but prohibit dating between employees where one reports to the other. Many of these same concerns will be present even if the two employees are simply co-workers and neither one is supervising the other.
Returning to the multi-million dollar question: Suppose the relationship ends and one employee alleges that in fact s/he was coerced/harassed into that relationship? What if you are looking to discipline that employee or s/he has resigned and now, as a disgruntled employees makes those allegations?
Let’s first look at how to respond to such allegations. Whether or not the employee has sued, you will have to investigate, but first: Did you know about the relationship? If so, what did you know? Were there any signs that in fact the relationship was not consensual (i.e. one employee gave into another employee’s demands or yielded to sexual advances)? Whether or not you knew, someone probably did. Those employees’ co-workers are your best likely sources of information. In addition to the specifics in my previous workplace investigation posts (which you can find here, here and here) I would want to see you take the following steps:
- Designate an objective investigator. If necessary, consider outsourcing that function. Yes, I know it costs money, but a biased person can easily botch the investigation, and, frankly, you can’t afford the liability that is likely to result.
- Take every reasonable step to ensure confidentiality. While this point applies to all investigations, in my humble opinion, it applies even more in this situation. Co-workers may feel torn, depending on whether they are friends with one or both of the formerly dating employees. They may feel even more torn if one of the employees is their supervisor, which leads to the next point:
- Tread lightly when interviewing co-workers/witnesses: Yes, you can cite your policies that might clearly state that employees who are aware of harassment should report it, but if you are heavy-handed in your approach they may simply clam up or respond defensively. Employees who are feeling defensive are generally not as helpful as those who are not.
- Don’t retaliate: This applies to the employee who complained (unless you have sufficient proof that the allegations were false) as well as any employee who cooperates with the investigation. Reassure the employee that s/he will not be subject to any retaliatory action, and let him/her know that if s/he experiences any treatment that feels retaliatory that s/he should report it and it will be addressed. In case you haven’t read my previous posts on retaliation (which you can find here), retaliation is illegal.
- Document everything: Were you expecting this one? You should have been. Starting from the time you learn of the allegations, document what the allegations were exactly, when and how you learned of them, what steps you took in the investigation, your conclusions, the actions you took, and, perhaps most important of all, why you took those actions.
What can you do to avoid this situation altogether? Here are some preventive measures:
- Have some policies in place: You can either prohibit workplace romances outright, or you can set some appropriate parameters. You can require that employees tell their respective supervisors about such a relationship, and let employees know that they may be disciplined when/if the relationship impacts their work or conduct.
- Consider having the dating employees sign either an acknowledgement that the relationship is consensual or a denial of the relationship. Obviously this step presupposes that you know about or suspect the relationship. As much as you may not like taking this step, it can be extremely valuable down the road if the relationship does go sour and one person accuses the other of sexual harassment. That employee now has to explain whether s/he was lying then or now and if so why. Speak with each employee separately and privately before asking them to sign such a document.
- Review and update your sexual harassment policies and procedures. Communicate them clearly to all employees and new hires.
- Train your managers and your employees on these policies, periodically.
- Monitor compliance with your policies. Policies are only helpful if employees and managers are complying with and enforcing them.
- Talk — and listen–to your employees: Employees are your best source of information as to the good, the bad and the ugly. They are more likely to talk with you if they see that you care–and here is one place where it pays to care.
I think I made my point, so I’ll stop here. Let’s meet back here next week. See you then.
Good news! If you missed the live presentation, you can now get the recording of my webinar “Navigating the Employee Leave Overlap: FMLA, ADA and Workers’ Comp)”.
Click on the title above for more info.
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