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Labor: You give love a bad name—When office romances sour

Use the possibility of office romances as an opportunity to educate employees about anti-harassment policies

This month, couples around the world will celebrate their love on Valentine’s Day. What happens, however, when love pervades the workplace?

According to one recent survey, 59 percent of employees have participated in an office romance. If so many workers are doing it, what can go wrong? In truth, a lot. Consider two recent examples.

Sanders v. DaimlerChrysler Corp. starts out like any great love story. Girl meets boy on the assembly line of the local automobile plant. They date for two years. Then, she tells him that she does not want to continue their relationship. How does boy respond? Like any alleged harasser, he says, “I can do something to your job.” Given that he is a union steward, she takes him at his word. When she has job-related issues following a medical leave, she sues the company for, among other things, sexual harassment. Ultimately, this story ended well for the employer, which won the case at trial.

Gerald v. University of Puerto Rico is a textbook example of the parade of horrible things that can happen when an office romance sours, with a decidedly less successful conclusion for the company than Sanders had. During an out-of-town conference, Dr. Melissa Gerald engaged in a week-long sexual relationship with her supervisor, Dr. Edmundo Kraiselburd. According to Gerald, the affair embarrassed her and she rebuffed Kraiselburd’s pursuits after their return home. Two years passed without incident, after which Gerald alleged that Kraiselburd engaged in three separate incidents of harassment, all within two months of each other.

The hospital defended against Gerald’s sexual harassment claim by arguing that Gerald herself engaged in sexual and off-color banter with Kraiselburd, and therefore invited whatever she received in kind. In reversing the district court’s dismissal of Gerald’s sexual harassment claim, the 1st Circuit rebuked any argument that Gerald had “asked for” the harassment:

 “We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work. Instead the evidence here was enough, at the very least, to raise a factual question as to whether Kraiselburd’s conduct was unwelcome….

 

Pointing to the fact that Gerald and Kraiselburd often engaged in off-color banter, the University says the supposed harassment was not severe. We disagree and think a jury could have seen things otherwise. Gerald says Kraiselburd [groped her], sexually propositioned her, and crassly asked in front of others why she would not have [intercourse] with him. The University is not denying these occurrences for summary judgment purposes. These offensive incidents, which involved sexual propositioning and uninvited touching, can reasonably be viewed as severe; and, in the case of the groping incident, physically threatening (not to mention criminal). Like we have said, it is clear that ‘behavior like fondling, come-ons, and lewd remarks is often the stuff of hostile work environment claims….’”

I am not here to tell you that employers should forbid their employees from dating (except in the case of a supervisor and a direct report). The heart is going to go where the heart wants to go. In other words, if your employees want to date, they will—with or without a policy forbidding their relationships and dalliances. Instead, employers should look at workplace romances as an opportunity to educate employees about the ins and outs of an anti-harassment policy. Train employees about what is and is not appropriate workplace conduct between the sexes. Remind employees that even though office romances are not prohibited, the company expects professional behavior regardless of the personal relationship (past or present) between employees. Advise employees that unprofessional behavior following an office relationship is not tolerated, and will lead to discipline, up to and including termination.

Focusing on conduct (and misconduct) instead of the relationships itself will provide your employees the necessary tools to avoid the types of problems that arose in Sanders and Gerald, and which, in turn, will help any organization avoid the litigation expenses those problems often cause. 

Contributing Author

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Jon Hyman

Jon Hyman is a partner in the Labor & Employment and Litigation groups at Cleveland law firm Kohrman Jackson & Krantz, a Meritas member firm....

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