The #metoo movement has brought a lot of dark areas to light about how women are treated in the workplace.
But there are grey areas that remain in the movement’s wake — one of them being flirting and relationships that start in the workplace. Research shows that more than 30 percent of all relationships begin in the workplace. Has the #metoo movement made that off limits now? What are the rules in this new environment and do they need to be changed in light of all that has happened in the wake of Weinstein?
“The fine line that existed between welcome and unwelcome conduct has been magnified and likely gotten even finer during the #metoo and #TimesUp shifting point,” says Nonnie Shivers, a shareholder at Ogletree Deakins. “While Title VII does not prohibit co-workers from having personal, social and even sexual relationships, consent – and more specifically, enthusiastic, reaffirmed consent – is more critical than ever to know — and to be able to later show — that conduct remains welcome.”
Shivers points out that employees are not sexless automatons and not every wink is sexual or harassing. However, knowing where that line is and when it’s crossed is so individualized and specific to the situation that no one can always ensure they are reading the signs correctly and their overtures are welcome, so flirting at work is best viewed warily as potentially flirting with disaster.
Know the difference
“It’s important to recognize the difference of isolated workplace flirting and harassment or abuse of power,” says John Alan Doran, a member at Sherman & Howard. “If you’re a boss flirting with a subordinate, you are at much greater risk because you wield implied power and influence even without trying. While #metoo serves an incredibly important social problem, it has also dramatically lowered the bar on what is and isn’t considered harmless flirtation.”
With the ever-evolving awareness of workplace misbehavior — both real and perceived — the risks of office romances can be even greater, according to Jodi Bohr, shareholder at Gallagher & Kennedy.
“Employers need to be aware of office romances and make sure there is not an imbalance of power between the two (supervisor in a relationship with a direct report),” Bohr says. “This creates a risk of a subsequent sexual harassment complaint in a romance gone awry situation. It may also make people outside the relationship feel as if their co-worker is getting special treatment because of the relationship.”
So how can a hopeless romantic tell when it’s right and when it’s wrong?
“One of the requirements for conduct to be considered sexual harassment is for the conduct to be unwelcome,” Bohr says. “This requirement means there is a fine line between flirting or overly-friendly behavior and harassment. Employers must be sensitive to flirting, but more so to the dynamic that is created when a relationship starts (or even ends) in the workplace.”
Bohr does have some positive news for those looking for love in the workplace.
“The #metoo movement does not mean that (consensual) flirting in the workplace is now off limits, office romances must be banned, or that properly implemented workplace rules need to be changed,” Bohr says. “Rather, a change in the focus of sexual harassment training and heightened awareness by employees, especially supervisors, should be sufficient to ensure that flirting does not cross the line into harassment, or if it does, that employers are prepared to properly address the situation.”
While experts agree that office romances are almost inevitable, there are things employers can do to minimize the risk of a legal issue arising from an office romance — whether it leads to a walk down the aisle or an ugly breakup.
“Audit your office romance, nepotism and non-fraternization policies and practices,” Shivers says. “Ask introspectively, ‘What scenarios have arisen in the past and what opportunities exist to clarify or revamp policies and practical approaches?’”
While Shivers says total prohibitions on office romances remain unusual and unrealistic, prohibiting relationships between direct reports or those within the same chain of command, anyone in human resources or senior leadership may minimize legal risk if such policies are thoughtfully drafted and implemented consistently. Shiver also stresses that policies need to discuss workplace flirting and romance up front and clearly define (as much as possible) what is acceptable versus unacceptable conduct.
“Employers should maintain the necessary policies to address situations that may arise as a result of office romances,” Bohr says. “Those policies include policies against harassment and retaliation; consensual romance in the workplace policies; and love contracts. A person jilted by the termination of a relationship may decide to subsequently claim that the relationship was not consensual. A previously signed love contract acknowledging the consensual nature of the relationship will go a long way in preventing or even defending against such a claim.”
Doran says policies and training should be clear that professionalism is demanded in all work settings and interactions, including electronically — text, instant message, email — and in any setting where co-workers are together, such as an off-site work trip, car ride to sites, office parties, etc.
“Give employees as many avenues to express concerns as possible, including anonymous hotlines or electronic reporting avenues,” Doran says. “Train the investigators — whether it’s human resources, legal or other — to know how to effectively handle concerns from both an employer and employee perspective and on core and advanced investigatory techniques, such as how to determine whether a concern is substantiated or not substantiated even without the colloquial smoking gun, which rarely exists.”
So, has the sun set on office flirting?
“It’s still okay to flirt,” Doran says. “but play nice, keep it clean and stop the instant you receive negative feedback.”
And what if you cannot help yourself?
“There’s really not a lot at stake here — just your job, your professional reputation, your livelihood and maybe even your family life,” Doran says. “It may sound overly dramatic, but when you look at the profound falls from grace for some extremely high-profile individuals, it doesn’t take much to recognize what’s at stake here.”