EMPLOYEES DATE AT EMPLOYER EXPENSE

By Kent A. Hansen, Esq.

John and Jackie are dating. John is the vice-president for sales of HCME Widgets and Jill is the office receptionist. The first time their co-workers become aware of their relationship was at the company holiday party when John and Jackie spent the evening with their arms around each other.

They were over 21 and single. So no one thought there was much of a problem. Of course, there was office gossip when John answered after-hours pages from Jackie’s apartment and she sported a new diamond heart pendant at Valentine’s that she opened with the two dozen roses John had delivered to her desk.

Now spring has sprung and so has the relationship. Jackie has called in sick a number of days requiring secretaries to fill in at the reception desk disrupting the flow of the office and raising eyebrows. When she has been there, John has complained to the office manager that the phone messages from customers taken by Jackie have incorrect information and call-back numbers. He has been overhead telling Jackie: "Why can’t you get it right the first time?" Other times that he noticeably avoids speaking to Jackie at all even when she says, "Good morning" when he walks in the door in the morning. Lately, John has been proposing the cost-saving and efficiency benefits of adopting a voice-mail system that eliminates the receptionist position altogether.

ACME’s human resources director has observed all this, approached the chief executive officer and said, "I think we have a sexual harassment complaint about John from Jackie just waiting to happen." The CEO replies, "You’ve got to be kidding." Should the CEO take this complaint seriously?

Absolutely! One standard for the determination that sexual harassment exists is whether the workplace is hostile, intimidating or offensive to an employee because of that employee’s gender. The legal issue under the "reasonable woman" test adopted by California and federal courts is whether a "reasonable woman" in Jackie’s position would perceive that she is the object of John’s hostility because they are not going out together any more. John’s intentions or motivations are irrelevant.

Also irrelevant are considerations about what Jackie and John may have done together away from work like sleeping together. Under California Labor Code sec. 96k effective January 1, 2000 an employer may not discipline an employee for off-duty conduct that is otherwise legal. Their sleeping together would be relevant and would constitute sexual harassment if John has demanded sex from Jackie on return for favorable treatment of her at the office. Quid pro quo harassment is also banned by law.

So what does ACME need to do?

If ACME doesn’t have a sexual harassment policy, it needs to adopt one now. If it has one, it needs to have it legally reviewed to make sure it meets the requirements of current law.

ACME also should adopt a policy on consensual romantic relationships. Forty percent of the Fortune 500 companies have these policies and the number is growing. Such a policy requires employees to disclose dating or romantic relationships with other employees. It requires each of them to sign a statement acknowledging the relationship, affirming that the relationship is consensual, that he or she has read and understands the sexual harassment policy and the complaint procedure under the policy. The policy can and should prohibit romantic relationships between employees in direct reporting relationships in the company.

ACME needs to investigate the relationship between John and Jackie for possible sexual harassment. This is true even if Jackie does not file a complaint. ACME is on notice of a potential problem and under California law an employer is strictly liable for the acts of its supervisors whether or not if knows of the wrongful conduct. The law simply concludes that if an employer makes someone a supervisor, the employer is responsible for what that supervisor does.

The HR director, a member of senior management or an independent attorney should conduct the investigation. The information obtained of the investigation is not privileged and is discoverable in litigation. That’s why the company’s counsel should not conduct the investigation, but should review the report of the investigation and confidentially advise management on what course of action should be taken in response to the report.

ACME needs to take action on the findings of the investigation. Credibility is the key. If there is credible evidence that John is hostile to Jackie because of the breakup of their relationship, then at a minimum John should be reprimanded in writing and warned that further misconduct will result in more sever discipline up to and including termination.

A good policy, a thorough investigation and prompt effective action based on the findings are the only way for ACME or any employer to avoid liability.

Liability for sexual harassment claims is something that California employers should seek to avoid. The statistical evidence that more than 75 percent of California sexual harassment cases that reach a jury result in verdicts for the employee plaintiff with an average recovery of $135,000.00. Most cases settle, but that too means employer expense and legal costs.

All things considered, John and Jackie are on a very expensive date for ACME.

Kent A. Hansen is the managing attorney of the Corona law firm of, Clayson, Mann, Yaeger & Hansen. The firm has been advising the Corona business community since 1910. This article is provided for the general information of Chamber members. Those wish specific legal advice should contact counsel of their choice

4/13/01

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