Alternate Dispute Resolution & Workplace Romance: A Match Made in Heaven

As the Millennium approaches, the makeup of the American workforce will mirror a family, rich in diversity and complexities. Ten years ago a Bureau of National Affairs study found that nearly a third of all romances began at work. (1) It has also been calculated that between 6 million and 8 million Americans enter into such relationships every year, and that about 50% of the time the result is either a long-term connection or marriage. (2)

In light of the cost of hostile work environments-by-failing to limit complaints of sexual harassment, sexual favoritism, and retaliation, many employers are looking for ways to manage workplace romance as a part of the overall risk management initiative. Corporations of all sizes are asking themselves: Should we have a policy prohibiting dating between Supervisors and subordinates? What about the privacy rights of the workforce and morale of the employees? Do we want to create strict policies and procedures to alter workplace travel and holiday parties? How do we deal with the emotional downside of a workplace romance gone sour?

There are no simple answers to the questions asked, but the forum for handling such conflicts can convey an important message to employees: that we are a family of workers spending many hours doing our jobs with our co-workers, so when we disagree, let's resolve our differences in a private setting, where the parties can listen to the claims raised, respond and retain control over the solution. Some form of Alternate Dispute Resolution can be explored to fit the personalities of the disputants, such as an open door policy, a conference option, facilitation, mediation or arbitration to mention a few. To retain good employees an atmosphere of fairness and openness may be key to conflict resolution.

The notion that companies should not feel threatened by office romances, which are a natural occurrence but accept the reality and manage the relationships is an ideal espoused by Dennis M. Powers, and associate professor of law at Southern Oregon University. He also maintains that "The American people have been socialized into thinking about intimacy and work as separate compartments of life. And that is simply not true." (3) Given that the work environment is another space and time component of our daily existence, it makes sense to create options for problem solving for personal and emotional issues flowing from the workplace in a respectful and private manner, with supportive persons chosen to facilitate a solution that the parties can suggest and implement.

To understand how an employer can better manage internal conflict, let's examine the results of litigation and court dicta. Consider the following fact pattern:

The supervisor of an office engaged in virtually daily horseplay of a sexual nature with female subordinates. This behavior included sitting on their laps, touching them in an intimate manner, and making lewd comments. The subordinates joined in a generally found the horseplay funny and inoffensive. With the exception of one incident, none of the horseplay was directed at the plaintiff. The supervisor additionally engaged in consensual relations with at least two of his subordinates. The court found that the supervisor's conduct would have interfered with the work performance and would have seriously affected the psychological well-being of a reasonable employee, and on that basis it found a violation of Title VII. Although this case did not involve sexual favoritism, the court stated that pervasive sexual conduct can create a hostile work environment for those who find it offensive even if the target of the conduct welcome it and even if no sexual conduct is directed at the persons bringing the claim. (4)

This decision reached at the expense of the parties and their lawyers and the courts, could have been formulated by those involved with specific safeguards created to prevent a similar situation. What is missing from the litigated result are the following considerations:

Involving the parties to a dispute in the solution, allows for their input and can be empowering, increasing employee productivity. Managing the dispute at the earliest stage possible, in a private setting where the parties retain control over the issues is more time efficient and better risk management.

Education is the first phase of managing workplace romance, especially if managers are involved with subordinates. Since workplace issues focus on human interaction, including interpretation of the spoken word, and physical and mental relationships at work, perceptions define the truth and become reality. These perceptions can be the basis for a lawsuit if the dynamics between parties are not understood. When a conflict arises due to a relationship formed with the workplace which is subsequently broken, the respective parties feel vulnerable and may reinterpret the facts to make them feel emotionally safe and correct. The party with more "power" in the workplace will likely use it to create a picture that justifies his/her actions. If at this juncture, the parties can take advantage of a confidential internal dispute mechanism such as mediation, there is a chance that the perceptions of each party can be expressed, and the parties can both listen to one another, possibly seeing the other's position through a less emotional lens, allowing a solution to be designed that will allow both persons to feel respected. Experts can also be interjected into the mediation making it easier for the parties to Hear what is being said, and an empathy created for the pain inflicted. Since mediation is recognized as a healing technique, the remedy derived from such a process may be more beneficial than a monetary award, especially if an understanding of each party's perceptions has been created.

Through a mediation, a supervisor who has engaged in sexually harassing behavior can hear and see the pain caused to the Victim and can begin to understand why his actions were inappropriate.

An employer should have specific job descriptions and expectations for their supervisors in regard to zero tolerance of sexually harassing behavior. When a complaint arises, the supervisor, through mediation may be able to delineate how his/her perceptions lead to actions that violated the stated expectations and may be able to provide guidance for other supervisors.

Once a complaint of workplace romance turns sour ahs been made via a claim of sexual harassment, an employer must attempt to avoid a retaliation claim based on subtle actions of the supervisor. Since retaliation claims are not tied to the employee's initial complaint, you don't have to prove the underlying claim to win a retaliation claim and punitive damages can be awarded. Thus, sorting out these conflicts in a mediation setting is very advantageous for all. Once a party understands how the victimized party viewed certain subtle workplace actions after the relationship ended, such as less lucrative work assignments, then an apology may be possible as part of a remedy, bringing great satisfaction to the party with less power. This option rarely occurs in a litigated setting where the stakes and positions have been entrenched. A mediation process can demonstrate an emphasis on the perceptions of each party and not blame, thereby creating a respect for exposing he issues and encouraging the use of the complaint procedures.

In a recent case, heard in the U.S. Court of Appeal for the Seventh Circuit (5), an employer fired an employee, claiming that her performance had deteriorated, after the employee promptly and appropriately responded to the female employee's sexual harassment complaint, and was found not liable. Consider these facts:

The employee claimed that sexual harassment began after she refused a date with one of her co-workers. For three years, she spurned co-worker allegedly looked at her in a sexual manner, made sexual comments, touched her hair, shoulder, and breasts, and rubbed the front of his body against her buttocks. After the employee complained, the employer investigated. Although it could not corroborate the charges against the co-worker, the employer still reminded him it its sexual harassment policy and told him to avoid any contact with the female employee that was not work-related. The employer gave the plaintiff two weeks off with pay, and offered her a transfer to another position. When she later complained that the co-worker was still bothering her, the employer moved her to another work station and arranged an escort for her whenever she might have contact with him.

Imagine what may have happened if the employer instead of firing the female employee after her second complaint that the co-worker was still bothering her, had attempted to mediate the issue. The employer may still have a harasser on the job and may have learned precious preventive information if the parties had been given a chance to confront and listen to one another. The employer did take remedial actions in response to the female employee's complaints, however, the remedy was not successful in creating a safe working environment. Why wasn't there an individual coaching/training of the alleged harasser with regard to sexual harassment? Obviously, his perception of what is allowed in the workplace may be a risk factor for other workers and ultimately the employer. If the alleged victim had solicited an apology from the alleged harasser through mediation, a learning curve for that workforce would have begun with regard to zero tolerance of this type of behavior.

It has been said that:

"Relationships more than information, determine how problems get solved or opportunities exploited." (6) To maintain a non-hostile workplace issues of a relational nature need to be better managed in the workplace. Mediation should be an option in a workplace anti-harassment policy to ensure that prompt attention is paid to perceptions of what is acceptable workplace behavior, especially when a romance has existed and goes awry. Fair treatment is the best shield against litigation of employment disputes. An employee's perception of fairness begins on the first day he/she is hired and on the basis of how respectfully workplace disputes are resolved.

Citations

  1. U.S. News & World Report, December 14, 1998, Cupid's Cubicles by James Lardner, page 44.
  2. The Office Romance: Playing with Fire Without Getting Burned (Amacom, 1999), by Dennis M. Powers
  3. The Chronicle of Higher Education: Research & Publishing: August 13, 1999. Law Professor Published Defense of Office Romance, by Danielle Stanfield.
  4. Spencer v. General Electric, 697 F. Supp. 204 (E.D. Va. 1988).
  5. Caudillo v. Continental Bank, 7th Cir., No. 97-C-884, unpublished 7/26/99.
  6. Information Ecology:Mastering the Information and Knowledge Environment, Oxford University Press, 1997, by Thomas Davenport and Laurence Prusak.