With Valentine's Day around the corner, many employees may have romance on the brain - and a fellow employee or even a supervisor or subordinate may be the target of their affection. An employer has plenty of reasons to discourage dating and romantic relationships in the workplace, including making the mistake of allowing a prior relationship between co-workers to cloud its handling of a sexual harassment complaint. One employer found out the hard way that it should not have discounted an employee's sexual harassment claim due to her prior intimate relationship with the alleged harasser. See Melissa S. Gerald v. University of Puerto Rico; Edmundo Kraiselburd, +2013 U.S. App. Lexis 1925 (1st Cir. 2013).
In this case, Melissa Gerald (Gerald) and her supervisor at the University of Puerto Rico (University), Dr. Edmundo Kraiselburd (Kraiselburd), engaged in a "weeklong sexual affair" at a business conference. When they returned to work, Gerald rejected Kraiselburd's romantic overtures. A couple of years later, Gerald alleged that Kraiselburd engaged in three distinct incidents of sexual harassment, including propositioning Gerald (which she refused), grabbing her breast and making sexually suggestive noises, and asking her after a work meeting "What will it take for you to f - k me?"
Shortly after, Kraiselburd transferred Gerald to a new position and relieved her of all administrative duties and management responsibilities. When Gerald filed a sexual harassment complaint, the University investigated the matter and interviewed a number of co-workers who said they had witnessed a relationship between Kraiselburd and Gerald that included "off-color remarks and jokes of a sexual nature." The University determined that there was no truth to Gerald's allegations regarding the first two incidents and the third incident involving "jokes and comments of a sexual nature was admittedly common for Gerald and Kraiselburd." It concluded that the alleged conduct did not rise to the level of severe and offensive conduct that altered Gerald's working conditions. Following this, Gerald quit due to the demotion and the mishandling of the investigation.
The 1st Circuit Court of Appeals allowed Gerald's sexual harassment claim to proceed to trial. The court refused to accept the notion that Gerald's voluntary engagement in sexual banter with Kraiselburd was an invitation to harassment. An employee telling risqué jokes does not mean that she is amenable to being groped at work. The court determined there was no evidence that Gerald encouraged or invited Kraiselburd to grab her breast, and she told University investigators that she was "disgusted and bothered by him doing so." Thus, the court held that there was a factual question as to whether Kraiselburd's conduct was unwelcome and a reasonable jury could find that the harassment was severe or pervasive resulting in a hostile working environment.
Advice for Employers
This case drives home the importance of employers having clear policies regarding sexual harassment, as well as employee dating and personal relationships and conflicts of interest in the workplace. Employers need to recognize the risks that come with permitting employee relationships, especially between supervisors and subordinates, because there is a great risk of a sexual harassment claim if the relationship sours.
Further, it is critical for an employer to provide comprehensive and regular training on all aspects of sexual harassment so that employees, managers and supervisors know what type of behavior is expected of them and understand the fine line between acceptable and unacceptable workplace conduct.
If an employer allows employees to engage in romantic relationships, it should consider having the parties sign a love contract. Under the terms of the love contract, the parties would state that the relationship is voluntary and consensual and that the parties are aware of the employer's sexual harassment and retaliation policies in the event the relationship ends. It also provides rules for permissible workplace conduct and advises that the couple should not permit their intimate relationship to affect co-workers or their work performance. It can also require the parties to arbitrate any disputes arising from the relationship or the love contract.
Additional Resources
Employee Management > Employee Handbooks - Work Rules - Employee Conduct > Dating and Romantic Relationships
Employee Management > EEO - Harassment
Sexual Harassment - Supervisor Briefing
Employee Management > Employee Handbooks - Work Rules - Employee Conduct Work > Rules Concerning Employee Codes of Conduct, Ethics and Conflicts of Interest
