Everyone loves a good office romance on TV. The “will they or won’t they” tension keeps everyone tuning in. But in the real world, an office romance, even a really good one, can lead to potential lawsuits if and when it all falls apart. Employers should be familiar with what actions are romantic and what actions are sexual harassment. And more importantly, what to do when sexual harassment is reported.

Welcome vs. Unwelcome

A consensual office romance likely involves sexual banter, sexual innuendo, physical touching, sexual favors, and sexual acts. These are also the same characteristics of sexual harassment in the workplace. The key difference is whether the actions are unwelcome. Let’s run through some scenarios:

1. Jim works in an office with other people. There is a certain special someone who catches his eye, makes his heart flutter, and makes his palms sweat when he talks to her. Jim puts in a lot of effort to make this person notice him and make known his affections for this person. Jim’s feelings are reciprocated. Things couldn’t be better. They hit it off and daily lunches eventually lead to this.

2. Ryan works in an office with other people. Kelly constantly comments on his clothes, his hair, and how handsome he is. It makes Ryan slightly uncomfortable but he acts polite, smiles, and says thank you. Kelly takes this as an invitation to lightly touch Ryan’s shoulder or touch his leg while they are alone in the annex. Eventually, it leads to an unwanted kiss from Kelly. It all makes Ryan extremely uncomfortable but he doesn’t say anything. Instead, Ryan requests a transfer to a different branch office and never sees Kelly again.

3. Angela works in an office with other people. Todd makes extremely crude sex jokes. Todd is constantly showing photos of naked women on his phone to others in the office, including Angela. Angela makes it known to Todd that this behavior bothers her and she demands that it stops. It doesn’t. Angela reports the matter to HR. The behavior doesn’t stop. Angela reports the matter to her supervisor. The behavior doesn’t stop, and now Todd goes out of his way to say sexist things to Angela every chance he gets.

Which, if any, of these, is actionable sexual harassment against the employer? If you guessed that #3, and only #3 is actionable sexual harassment, then you must work in HR.

When Is Sexual Harassment Actionable Against The Employer?

If an employee wants to make a federal claim under Title VII of the Civil Rights Act of 1964, the workplace must have at least 15 employees. If there are less than 15 employees, no matter how pervasive and perverse the harassment, an employee cannot make a federal claim. North Dakota state law does not have this restriction, however, and the employee could make a claim in state court under the North Dakota Human Rights Act.

Next, the harassment must be unwelcome. If two employees are laughing at each other’s crude sexual jokes, then the harassment is not unwelcome. Likewise, if two employees are consensually making out in the copy room, the harassment is not unwelcome.

And ultimately the harassment must be reported to the employer in order for the employer to be liable. This means the employee being harassed must report the harassment to a supervisor or HR. An employer who does not know about the harassment cannot take corrective action to prevent harassment in the future. It is one thing to accuse a coworker of sexual harassment, which may be actionable against the coworker. However, in order for the employer to be held liable, the employer must know about the harassment and allow it to continue.

Let’s jump back to the three scenarios above. The reason only #3 is actionable is that it was reported to the employer and no action was taken by the employer to stop the harassment. Scenario #2 was never reported to the employer and therefore the employer could not stop what it did not know was taking place. Scenario #1 fits all the characteristics of harassment, but the actions are not unwelcome.

Be A Responsive Employer

Office romances are potentially hazardous for employer liability. The employer should strive to create a culture where all employees feel comfortable. There are many training opportunities for employers to create this environment. In the current #metoo climate, an employer cannot take enough precautions. A good employee handbook with a strong sexual harassment policy is a start. But office culture will dictate whether the employer believes the policy or whether the policy is just dead weight. Employers don’t want this to happen.

If you are an employer with questions about office romances or sexual harassment, call SW&L at 701-297-2890. Or you can email us using the contact form below and one of our attorneys will try and help.

The information contained in this article and on this website is for informational purposes only and not for the purposes of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem.

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