Q&A: Do we have harassment liability if a workplace relationship is consensual?
Q&AHarassment & Discrimination
Question: An employee in a consensual, romantic relationship with a manager in another department has started complaining about “harassment,” which is really just her coworkers teasing her about the relationship. She’s also complaining that they’re having “problems” in the relationship which is spilling over into hostile treatment at work by the manager. The owner is ready to terminate her for continuing to bring her drama into the workplace. Are there any legal concerns we should consider?
Answer: Yes, there are legal compliance concerns here that must be addressed before any employment action is taken. The employee’s complaints of harassment by coworkers and hostile treatment by the manager should be investigated thoroughly and promptly. Offsite or off-duty conduct can be illegal harassment if it has an effect in the workplace, so employers cannot afford to ignore bad behavior at work just because the employee consented to a relationship outside of work.
Is she Bringing it on Herself?
If her allegations are substantiated, then the offending employees should be disciplined in a way that’s reasonably likely to stop the behavior. Employees don’t have a right to “tease” their coworkers about a relationship just because the relationship is with someone else at work. The idea that an employee “asked for it” or “brought it on herself” by having a relationship with someone else at work is harmful to workers and certainly not a legal defense to a harassment lawsuit. Similarly, if the investigation finds that the manager is treating her inappropriately at work, you have a duty to take prompt action to stop his bad behavior. The fact that the two of them are involved in a relationship outside of work doesn’t give him license to treat her poorly at work.
A Recent Workplace Harassment Case
A Pennsylvania employer will have to defend itself in court against a former employee’s harassment and retaliation claims arising out of a similar situation. The employee was subjected to sexual comments and conduct in the workplace by her “mentor,” with whom she was having a sexual relationship, and by other male coworkers. The mentor admitted that he discussed their sex life with their male coworkers and encouraged them to ask her lewd questions. The employee alleges that when she tried to end the relationship, the mentor became physically abusive and threatened to ruin her reputation at work. Although the employee complained to the employer several times, the employer never investigated. The employer argued that it couldn’t be liable to the employee for harassment because of the consensual nature of her relationship with the mentor. The court disagreed and will allow her case to proceed to trial (Ivins v. Pennsylvania Dept of Corrections, ED Penn, Feb. 2019).
Focus on the Workplace Behavior
As this case demonstrates, it’s worth giving some thought to why this female employee is being blamed for bringing relationship “drama” into the workplace by complaining about inappropriate behavior by other employees while at work. If her complaints are substantiated, then it’s really the manager and coworkers who are creating the drama through their bad behavior. A good rule of thumb is to keep the focus on the workplace behavior and discipline those behaving inconsistently with your expectations of respectful and professional behavior at work.
Resources for Preventing Workplace Harassment
For more information on preventing harassment in the workplace consider these resources:
- Download Vigilant's Legal Guide, At a Glance: Workplace Harassment (free to Vigilant members).
- Vigilant members can talk with their assigned employment attorney about a particular issue, or learn about our harassment prevention training.
- Not a member? Inquire today about Vigilant membership. Work with a dedicated employment attorney for all your employment law and hr issues under a flat monthly fee.