The adoption and enforcement of a policy regarding consensual workplace relationships is essential for all employers. With the American workforce spending at least one-third of their lives at work, it is inevitable that some employees will engage in romantic and sexual relationships with one another. A recent case in the Eastern District of Pennsylvania, Lucchesi v. Day & Zimmerman Group, reinforces that such relationships may have business and legal costs. While employers cannot prevent these relationships from forming or ending, they can take steps to manage their effect on the workplace and to reduce the potential liability stemming from them. A well-drafted policy is a critical first step.
Office Romances At-a-Glance
According to a recent survey 59% of employees admitted that they have been involved in an office romance, while an additional 64% answered that they would be willing to do so if the opportunity arose. This same survey reported that 75% of employers do not have a policy regarding workplace relationships.
While often harmless, consensual co-worker relationships can create a myriad of problems for the employees involved, their co-workers, and their employer. In addition to the obvious distractions of the romance, when the relationship sours, ends or is no longer consensual, the potential for sexual harassment, discrimination, or retaliation claims increases. Claims arising out of workplace romances, however, are not only brought by the parties to the relationship - as in the Lucchesi case - but also by third-parties. Indeed, a growing number of “paramour favoritism” claims have been brought by employees who claim to be undervalued or “passed over” as a result of a favoritism shown toward a co-worker who is engaged in a romantic relationship with the supervisor. In addition to the obvious impact on employee morale, these situations have led to claims of discrimination and retaliation. While at least one California Supreme Court case held that widespread paramour favoritism may be actionable, most courts, including the New Jersey Appellate Division and the Southern District of New York have found that claims of isolated favoritism are not viable under Title VII and similar state anti-discrimination statutes. This is consistent with the EEOC’s published guidance on employer liability for sexual favoritism. Nevertheless, plaintiffs continue to bring the claims.
The Lucchesi Case
In Lucchesi, No 10-4164 (E.D. Pa. Apr. 21, 2011), the plaintiff sued his former employer alleging he was unlawfully terminated based upon his gender, as well as in retaliation for challenging the fairness of Day & Zimmerman’s handling of a dispute between himself and a female colleague with whom he had engaged in a consensual sexual relationship. During his employment, plaintiff was informed by two human resources officers that his co-worker felt “uncomfortable” in his presence, and that she had complained about text messages and emails she received from the plaintiff on her personal phone and email accounts. The plaintiff then complained to Day & Zimmerman’s senior vice president of Human Resources “that he felt that he was being treated differently than his female co-worker in the company’s ‘investigation’ into her complaint,” noting that one HR officer had spoken to his female co-worker in connection with her complaint, whereas Plaintiff had been “interrogated” by two. Roughly four days after his meeting with HR to discuss these issues, Plaintiff was terminated. According to Plaintiff, one of the HR officers who had spoken with him allegedly told him that the reason he was being terminated was because he might “walk past [the female co-worker’s cubicle],” and this possibility of future interaction between the two created a “gray area” for the company. Plaintiff’s Complaint also excerpted an email from Day & Zimmerman’s counsel to Plaintiff’s previous counsel, in which Day & Zimmerman’s counsel allegedly asserted that Plaintiff was being terminated because he had “admitted to . . . conduct . . . that could be construed as harassment or stalking,” and also because the two HR officers had objected to Plaintiff’s “tone” during their conversation.
In denying Day & Zimmerman’s motion to dismiss the Complaint, which alleged gender discrimination in violation of the Pennsylvania Human Rights Act and Title VII of the Civil Rights Act of 1964, the court held that the facts “raise[d] a reasonable expectation that discovery will reveal evidence of discriminatory animus.”
Employers who do not already have a policy regarding office-relationships should adopt and implement one, and those who already do, should periodically review and disseminate it. At a minimum, such a policy should require timely and discrete disclosure of the existence (or termination) of a romantic or sexual relationship to a designated member (or members) of company management or Human Resources. This is especially important when the employees involved are in a supervisor/subordinate relationship. Mandatory disclosure allows the employer to address the impact of the relationship proactively, such as whether it is necessary to alter reporting structures or change job responsibilities.
To discuss your company’s policy needs, contact any attorney in the Gibbons Employment Law Department. And watch for more posts on training and information about exciting new Gibbons educational programs on this blog.
Michael J. Riccobono is an Associate in the Gibbons Employment Law Department.