Breaking Up Is Hard To Do: Cautionary Tales on the Importance of Fraternization Policies

August 6, 2010

When you put employees of the opposite sex together for 40 or more hours per week on a continual basis, intimate relationships are bound to develop. In fact, a recent survey conducted by reports that 47% of workers have participated in an office romance at one point in their lives. Although there is nothing illegal about the average voluntary, “welcome” office romance, these romances can create a host of problems for employers above and beyond office disruption, distraction and gossip.

As anyone who has ever ended a relationship knows, breaking up is hard to do. These bitter breakups often result in legal claims against employers, including claims for sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII). Such dangers inherent in workplace romances were also recently illustrated in two cases from the 7th and 1st Circuit Courts of Appeals.

Won’t Take No For an Answer

In Turner v. The Saloon Ltd., the 7th Circuit Court of Appeals confronted the practical consequences of workplace romance. The plaintiff, Paul Turner, sued his former employer, a Chicago restaurant called The Saloon, for hostile work environment sexual harassment and retaliation in violation of Title VII based on the alleged actions of his female supervisor. Prior to filing his action, Turner and his supervisor had a 9-month consensual, welcome sexual relationship. Nevertheless, as the relationship soured, so too did Turner’s working conditions. Upon ending the relationship, Turner’s former girlfriend / supervisor allegedly subjected him to unwanted sexual conduct, despite his requests that she stop.

This conduct consisted of the supervisor (1) putting her hands inside Turner’s pants pockets and touching his genitals; (2) pressing her chest against him and asking, “Don’t you miss me?”; (3) asking Turner to kiss her; (4) approaching Turner from behind and grabbing his buttocks; and (5) watching Turner change into his work uniform and telling him she missed seeing him naked. In addition, Turner’s supervisor allegedly retaliated against him for both ending the relationship and expressing disinterest in the sexual contact by altering his work assignments, subjecting him to unwarranted discipline and reprimanding him in front of other employees.

The district court awarded summary judgment to the employer on procedural grounds, finding the claims were untimely. The 7th Circuit, however, reversed. In addition to finding the action timely, the 7th Circuit concluded that all of the alleged acts of Turner’s supervisor were sufficient for at least the harassment claim to survive summary judgment. In so holding, the previous consensual nature of the sexual relationship did little to circumvent the “unwelcome” element necessary for a sexual harassment claim under Title VII. Instead, the Court virtually ignored the prior history between the harasser and harassee and found that the one unwelcome act of Turner’s supervisor touching his genitals was sufficient in and of itself to give rise to an actionable claim of harassment.

Won’t Walk Away Without a Fight

The 7th Circuit is not alone in instructing employers on the dangers of workplace romance. Two years ago, the 1st Circuit addressed a similar issue in Forrest v. Brinker Int’l Payroll Co., LP, d/b/a Chili’s Grill & Bar, where a female employee, Allison Forrest, sued her employer for hostile work environment sexual harassment after her former boyfriend (also an employee) lashed out at her following their bitter breakup. Forrest alleged her coworker called her derogatory names, refused to handle her orders, talked about her to other employees, and told her she was fat and needed to go to the gym. Even though Forrest’s employer investigated each complaint and took remedial measures, the employer found itself dangerously close to liability for what appeared to be the aftermath of a relatively routine breakup.

The trial court dismissed the sexual harassment claim, stating that the actions were not “based upon Forrest’s sex” but were instead motivated only by a breakup. However, the 1st Circuit disagreed, emphasizing that “whether a harasser picks his or her targets because of a prior intimate relationship” or a “desire for a future intimate relationship” should not be a factor in the Title VII analysis. The 1st Circuit ultimately affirmed the dismissal only because Forrest could not establish that “prompt and appropriate action” was not taken in response to the complaints. However, the Court cautioned Forrest’s employer, emphasizing that the prior sexual history between the parties offered no insulation from liability.

Employer Take-Aways

Working conditions like long hours and confined work space make office romances difficult to avoid. Nevertheless, the cases above are reminders to employers of the legal dangers lurking behind seemingly run-of-the mill office romances. As litigation makes clear, employers are not insulated from Title VII liability simply because a prior consensual relationship led to the claims arising under the statute. To the contrary, the prior relationship often supplies fertile grounds for a claim, subjecting employers to potential liability even where the sole motivating factor behind the harassment or retaliation is the dissolution of an office romance. As a result, steps employers should consider to limit liability include:

  • Ensuring that non-harassment policies are updated and distributed to employees upon hire. Non-harassment policies should also be accompanied by an acknowledgment page signed by every employee and maintained in their personnel file.
  • Adopting fraternization policies that, at a minimum, (a) discourage dating between coworkers, and (b) prohibit dating between supervisors and subordinates, given the ripeness for retaliation claims.
  • Strongly enforcing fraternization policies, where they exist.

For additional information, please contact the author or any other member of the McGuireWoods Labor & Employment and Employee Benefits teams.