Valentine’s Day often can draw strong reactions from people. Some relish the opportunity to express themselves and show affection towards admired ones. However, as companies prepare for Valentine’s Day this year, some employers and human resources professionals will be wishing Cupid had stayed at home.
VALENTINE’S DAY can spell legal woes for employers with “affectionate” (and potentially sexually harassing) employees who take advantage of Valentine’s Day (or the surrounding workdays) to express their unrequited and unwelcomed desires to co-workers and subordinates.
Title VII of the Civil Rights Act of 1964 prohibits discrimination and sexual harassment in the workplace. Sexual harassment often comes in one of two scenarios. The first kind is known as “quid pro quo,” and generally occurs when a supervisor seeks to exchange sexual favors from a subordinate for favorable treatment regarding the employee’s terms or conditions of employment. The second scenario often is referred to as a “hostile work environment” claim. A hostile work environment claim can arise when actions such as offensive comments, pictures or actions, lewd comments, or dirty jokes make the workplace a hostile work environment for one gender.
Also, Title VII also prohibits employers from retaliating against employees for reporting unlawful discrimination or harassment.
The case law is all too rampant with cases describing situations of sexual harassment occurring on or around Valentine’s Day. Many illustrate situations in which cards and gifts from supervisors to subordinates – such as flowers, cookies and chocolates, or cards bearing sexually explicit comments – are used as evidence of unwanted sexual advances. Others illustrate employees who have reported conduct and were threatened with adverse employment actions such as demotion, loss of paid leave or termination.
AS USUAL, THE best practice for preventing liability this Valentine’s Day is through preventive measures that start with a company “no-harassment” policy. Employers who effectuate well-thought-out no-harassment policies outlining reporting procedures to be followed in the event of a violation are better positioned to respond and deal with sexual harassment issues that may arise.
A well-written policy should refer employees to personnel who are properly trained on how to respond and who can respond quickly to a complaint, should it arise. Employers are encouraged to require employees to report violations to human resources personnel or upper levels of management who often are better trained on how to handle these situations. Companies who refer employees to their immediate supervisor put themselves at risk if supervisors are not knowledgeable and prepared to respond appropriately.
Employers should further make sure that their no-harassment policy is communicated to all employees. They may consider taking this as an opportunity to send a reminder to employees of their no-harassment policy and can talk to their legal counsel about examples of potentially inappropriate or unwelcome conduct.
Policies, however, are only as good as their implementation. Employers will want to make sure that their personnel have been properly trained on company policies and how to properly respond to a situation if it arises.
Additionally, many companies utilize “no dating” policies that prohibit romantic and sexual liaisons between employees. Notwithstanding, considering that some studies have shown that up to 30 percent of workers have dated a co-worker, some employers believe that relationships in the workplace are unavoidable and instead use “Cupid contracts” to help protect themselves from liability. In a Cupid contract, employees acknowledge in writing that they are engaged in a consensual relationship; that behavior by the other employee is welcomed; and , if the behavior is not welcomed, the employee will notify the employer.
KNOWLEDGEABLE employers who effectively train employees on how to spot and respond to inappropriate behavior can avoid wearing red on their face this Valentine’s Day season and can save themselves a good bit of heartache in the future.
(The writer is an associate in the Atlanta office of a national labor and employment law firm.)