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Flowers, chocolates, love letters, and . . . costly litigation?

As we enter the first Valentine's Day of the #MeToo era, a wise employer is wary of the risks associated with office romances. A new survey of 150 human resources executives published by outplacement company Challenger, Gray & Christmas, Inc., shows a few of those risks. Over 62 percent of the respondents reported that they have had to address failed or inappropriate office romances. A third of those romances ended up with one of the parties no longer being employed with the company.

Given the amount of time that coworkers spend together, it should come as no surprise that office romances are commonplace. While there is nothing unlawful per se about coworkers dating, when such relationships sour, they often result in claims of sexual harassment or retaliation, particularly if one of the parties continues unwelcome pursuit of the other. That can lead to expensive litigation and bad publicity for the employer.

The risk is compounded in the case of supervisor-subordinate romances. Sexual harassment and retaliation claims by subordinates are generally stronger, since employers can be held strictly liable for the actions of their supervisors. And other employees may also have claims. For example, coworkers may complain that a supervisor is giving preferential treatment to a subordinate employee, and discriminating against them. Even without legal claims, the existence of a supervisor-subordinate relationship can damage employee morale throughout the office.

While employers cannot realistically prevent office romances from happening, they can limit their legal risk through effective policies and training related to fraternization, sexual harassment, and retaliation.

Fraternization and harassment policies should be customized to fit an employer's particular culture and business. There is no one-size-fits-all. At a minimum, however, these policies should clearly define what constitutes unacceptable behavior and establish the consequences for engaging in such behavior. Additionally, as a general rule, it is best to prohibit romantic relationships between employees and their direct supervisors. Many employers include in their policies specific direction on what to do if a romantic relationship blossoms in the workplace, such as voluntarily reporting the relationship so that steps can be taken to alleviate any concerns. For example, in a direct reporting situation, a company might require one of the parties to transfer to a different department.

Whatever fraternization policy an employer chooses to adopt, consistent enforcement is key both to preventing harassment and retaliation claims from arising in the first place and also to being able to rely on the policy as a defense in litigation. To be truly effective for both harassment prevention and litigation defense, the fraternization policy must apply equally to everyone, including members of upper management.

Other proactive steps that employers can take include adopting a clear complaint procedure that protects the complaining employee from retaliation. Periodic reminders to employees about how they can bring concerns to the company's attention are a good idea and can be done in the form of training sessions, payroll stuffers, or e-mailed copies of the antiharassment policy and complaint procedure.

Likewise, requiring managers to take periodic training on the company's fraternization, harassment, and retaliation policies is a good idea. Such training should cover what constitutes unacceptable behavior under the policies, the risks of consensual relationships, and what the manager should do if he or she becomes aware of a potentially problematic situation, including one that does not involve the manager or the manager’s department.

It is Valentine's Day, and love is in the air. It is a good day to remember the risks associated with office romances and to take some steps to keep the love bug from stinging the employer.

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