4/25/2007
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HUMAN RESOURCES MANAGEMENT—Ideas & Trends
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“I tend to think ‘no dating’ policies are inadvisable as they implicitly encourage employees and supervisors to just keep such relationships confidential. Individuals are going to date in the workplace, whatever their employer’s policy forbids.”
Interview conducted by CCH, a Wolters Kluwer business, with Lynn D. Lieber, Esq.
Inter-office romances can lead to problems with employee productivity, retention and motivation and there may be legal implications as well. Such romances can lead to sexual harassment claims, particularly when the relationship involves an executive and a subordinate.
Wal-Mart case put inter-office romance in spotlight.
Last December, Wal-Mart marketing exec Julie Roehm was fired by Wal-Mart Stores, Inc. Roehm promptly filed suit, claiming that the company failed to give her severance and that the retailer didn't return some personal belongings. In March, Wal-Mart countersued, armed with evidence that Roehm had a romantic relationship with Sean Womack, Roehm's subordinate, along with alleging that she and Womack were seeking jobs with an ad agency that was bidding on a contract with Wal-Mart.
The suit filed by Wal-Mart includes evidence of the alleged affair in the form of e-mails turned over to the employer by Womack's wife, Shelley Womack. Interestingly, the e-mails were found in a private account and created on Womack's personal computer, not at the workplace.
The impact of technology on sexual harassment claims
Today’s workplace is nothing short of technologically driven, so it should come as no surprise that technology—and in particular, email—plays a starring role in most sexual harassment claims. In the Wal-Mart case, email evidence was introduced that came from the employee’s private computer. It is a well established practice for employers to revoke, generally in a policy, employees’ expectations of privacy, but this seems to be unchartered territory. The question is: Do employees have a right to privacy in emails sent from a private computer to a coworker?
Employer’s access to workplace computers. “Employers generally have unfettered rights to access employee email and computer and phone systems if the employer has adequately reduced employees’ expectation of privacy in electronic communications,” said Lynn D. Lieber, Esq., an employment law attorney. “Employers reduce employees’ expectations of privacy by having policies, handbook statements or other documents—written or electronic—which notify employees that all electronic communications are owned by the employer and that employees do not have privacy rights to those communications.”
What about private, home computers? Both you and your employees might be surprised to learn that employee’s personal emails could be subject to disclosure in the event of litigation. This is exactly what the Wal-Mart case has brought attention to. “The laws regarding what evidence is “discoverable” in lawsuits are very broad—generally litigants are permitted to request anything relevant to the subject matter involved in the pending action,” said Lieber. “An employee’s personal emails would be subject to discovery if the employee brings suit against their employer, the employer sues the employee or even if the employee is a coworker who sends or receives personal emails to another employee who is a litigant.”
Technology has put sexual harassment law into overdrive. According to Lieber, the impact of technology on sexual harassment is perhaps best demonstrated by this real-life example:
A manager and employee (both married) are having a workplace affair. The manager sends the employee a password protected document by email that is highly salacious—with details about his romantic feelings, their prior sexual antics, and his invitation for them to have phone sex and to secretly go away together for the weekend. Her husband sees the subject line of the email, which reads “For Your Eyes Only” and suspects his wife’s infidelity. The husband coerces his wife to give him the password, reads the email, becomes enraged, and sends the email to hundreds of employees at the company. The email subsequently was forwarded to thousands of people and became the subject of discussion in industry-related chat rooms and blogs. The manager got fired from his job of 35 years and the employee got divorced. The employer was faced with a public relations nightmare. All courtesy of the information highway.
“Civil litigation rules generally place a litigation ‘hold’ on documents—electronic or paper—during the course of a lawsuit,” said Lieber. “This means the employer has an affirmative obligation to preserve anything that could be relevant, or lead to other information that could be relevant, in the lawsuit. The same would be true of an employee’s personal emails if the employee is involved in the litigation.”
Don’t be too quick to ban interoffice romances
Perhaps the solution to the sexual harassment lawsuits brought on by workplace romance is to simply ban such relationships. Lieber, however, suggests that HR not be too quick to jump to that end. Instead, she describes, there are three different types of “non-fraternization” policies.
Non-fraternization policies. “Some employers, like Wal-Mart, impose strict bans on any dating in the workplace,” said Lieber. “These policies are not generally legally enforceable as they are considered overbroad. I tend to think ‘no dating’ policies are inadvisable as they implicitly encourage employees and supervisors to just keep such relationships confidential. Individuals are going to date in the workplace, whatever their employer’s policy forbids.”
“The second type of ‘non-fraternization’ policy prohibits supervisors from dating any employees, because the disparity of power between the two could be viewed as creating a situation where the employee was under duress to enter into or stay in the relationship,” described Lieber. “Such policies are more legally and practically enforceable.”
Finally, the third “non-fraternization” policy is the most common and most recommended. “This policy prohibits supervisors from dating subordinate employees who are in the supervisor’s direct chain of command,” said Lieber. “There is an inherent conflict of interest in a supervisor dating a subordinate. The supervisor will not be able to maintain objectivity when giving the employee evaluations or discipline. Even if the supervisor can maintain a neutral position, other employees could perceive favoritism stemming from the relationship and bring a lawsuit (in some jurisdictions) if they are passed over for a promotion or their employment is otherwise negatively impacted by their supervisor’s personal relationship.”
Is a policy really necessary? You may be surprised to know that there are still many supervisors who don’t know—or choose to ignore—that it is dangerous to date a subordinate employee. If for no other reason, a policy may be necessary simply to ensure that everyone is on the same page.
“Workplace romance gone awry is very costly for employers—both in money and in time and resources,” said Lieber. “Sexual harassment lawsuits are very hard to defend legally because there is always a dispute of fact (one person’s word against another), making it hard to use the legal procedures for early case dismissal. Employers generally do not want to go to a jury trial on such a volatile issue with the inherent risks of a jury.”
Whether your organization chooses to implement a non-fraternization policy or simply ban inter-office romance altogether, a clear policy should be in place forbidding a supervisor from dating an employee in their chain of command. “Employers need to communicate the policy and enforce the policy consistently,” said Lieber. “Training supervisors in why it is inappropriate to date subordinates is also critical. Supervisors at all levels of the organization—even top executives—need to know the policy applies to them and that the employer will take disciplinary action against them if they violate it.”
Case serves as good reminder
The Wal-Mart case is good reminder for HR to make sure their organization is able to establish an affirmative defense in the event of a sexual harassment lawsuit. “According to the U.S. Supreme Court, an employer can establish such a defense if it can show that it ‘exercised reasonable care,’” said Lieber. “This means having an updated sexual harassment policy, uniformly enforcing that policy and conducting regular sexual harassment training for all employees, instructing them on how to report complaints of harassment in their organization.”
“Supervisors need more in-depth training to assist them in identifying, receiving and reporting harassment claims to HR,” she continued. “Although technology has made our lives easier in many respects, it has created numerous challenges in the complex area of human relationships in the workplace.”
Source: Interview conducted by CCH, a Wolters Kluwer business, with Lynn D. Lieber, Esq., a seasoned employment law attorney and a nationally recognized spokeswoman on workplace ethics, harassment and discrimination law. Lieber is also founder and CEO of Workplace Answers, Inc., a San Francisco-based provider of Web-based legal compliance education.