Given the amount of time we spend in the workplace, it is natural that personal romantic relationships between employees may develop. And it is just as natural that some of those relationships will not last. Relationships at work raise many potential issues. One of the issues is whether some of the conduct that was considered ”welcome” during the relationship may be misconstrued or considered ”unwelcome” after the relationship ends. What if one of the former partners, after the relationship ends, claims that he or she is being sexually harassed by the other partner? Does the employer have an obligation to intervene or is it just a personal matter between the former couple?
It is possible that the person complaining of harassment is simply being oversensitive and may be having a harder time with the breakup. In that situation, it may not be necessary for the employer to do more than meet with the employees (separately) and clarify the employer’s expectations about professional behavior in the workplace. But it also is possible that the same conduct before the relationship ended could be interpreted as inappropriate after the breakup. And depending on the severity of the complaint, an employer may need to get more deeply involved.
For conduct to be considered illegal harassment, one of the requirements is that it be ”unwelcome” conduct. And whether it is ”unwelcome” is determined in the eyes of the beholder. For example, during the relationship, it may not have been an issue of concern for the complaining employee that his romantic partner was always stopping by his desk and making comments about his manner or style of clothing. Or he may have liked the fact that his partner called him six or seven times during the day to ask how he was doing. But after the relationship ended, that same conduct may not be received in the same way. It could be bothersome, offensive, or otherwise make him feel uncomfortable.
It does not matter whether the ex-partner has no ulterior motive and is not trying to offend. In fact, the intent of the ex-partner is virtually irrelevant. And even if the conduct is not illegal now, it may become illegal if it continues over time because it could create a harassing environment. Conduct may be sufficiently severe and pervasive such that it alters the terms and conditions of employment. That type of conduct can quickly cross the line into illegal conduct. And even if it doesn’t cross the line, it may nonetheless be inappropriate in the workplace. Either way, an employer has an interest in finding out what is going on and creating a response that addresses the issues.
It is best to work with human resources and/or legal counsel to conduct an investigation commensurate with the circumstances. The conclusion may be that nothing inappropriate happened and that the issue is strictly personal. But even so, the employer would probably want to let the employees know that they are both expected to behave professionally at work and remind them of the conduct standards applicable to the workplace. Hopefully, the conduct will stop. But if it doesn’t, the employer has created a record for taking additional disciplinary steps. Or, the investigation could just as easily show that once the personal relationship ended, conduct that was welcome before is not welcome now and needs to stop because it is not ”simply” unprofessional or inappropriate and could easily become illegal conduct. In that case, an employer would be obligated to put a stop to it and take action to prevent it from happening again in the future.
Needless to say, an important element of this situation is documentation. The employee’s complaint should be documented at the time the complaint is made. What the employee said should be written down without editorializing. The investigator should document the investigation and the responsive action taken. And any conversations with the employees at the end of the investigation should be documented and kept for future reference. In the event the behavior continues and the situation becomes adversarial, the employer’s record of looking into the issue and trying to resolve it effectively will be helpful later.
The bottom line is that the employer needs to take the issue seriously. If the employer dismisses the issue as a personal one, it could needlessly mushroom into much more. The difficulty for the employer is in deciding where a personal issue between two people becomes a workplace issue that needs to be addressed. Only an investigation, even a minimal one, can help determine the scale of the employer’s response. Your human resources and legal departments are well trained to help you assess the specific issues in the particular situation and implement an appropriate response.
Barrie Gross is former Vice President and Senior Corporate Counsel (Employment Law) for an international Fortune 1000 company and is a regular contributor to AllBusiness.com. She is the founder of Barrie Gross Consulting, a human resources training and consulting firm dedicated to assisting companies to manage and develop their human capital. Visit www.barriegrossconsulting.com to learn more about Barrie and the services BGC provides.
Note: The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.