Valentine’s Day is fast approaching, and spring will soon be in the air. Given that this time of year is so closely connected to love and romance, the KLC Municipal Law Department wanted to take this opportunity to discuss your city’s fraternization policy and the very real liability concerns that romance in the workplace can pose.
Love, starry-eyed glances, candy, and flowers are all wonderful things. In the workplace though, an office romance can quickly veer into a toxic situation where there is a perception (or reality) of preferential treatment between the lovebirds. Such an appearance is only amplified if the relationship is between a supervisor and a subordinate.
As much as we hate to clip Cupid’s wings, unfortunately, there are some decidedly non-romantic concerns and considerations when the city becomes aware of an office relationship. Unfortunately, the most serious concern is ensuring that the relationship does not exist because of a promise, threat, or coercion made by a supervisor or coworker. What appears to be candy and rainbows from the outside may very well involve your city’s sexual harassment policy. This is not to say that a consensual relationship in the workplace is impossible, but there is a real risk of liability anytime a relationship involves an unequal power dynamic between the parties involved. The city has a duty in such a case to ensure that any appearance or reality of promises, inducements, or yes, even threats are not at play in a relationship.
Courts have found that employers can be held vicariously liable for sexual harassment by supervisors based on civil rights laws that apply to employers on the basis of respondeat superior or agency principles. See, Kirkwood v. Courier-Journal, 858 S.W.2d 194 (Ky. Ct. App. 1993) and Brewer v. Hilliard, 15 S.W.3d 1 (Ky. Ct. App. 1999).
An employer can be held liable under the Kentucky Civil Rights Act in the case of a harassing co-worker where the employer knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action. Additionally, an employer is vicariously liable for an actionable hostile work environment created by a supervisor with immediate or successively higher authority over the employee. See, KRS 344.040 et. seq. and Clark v. United Parcel Service, Inc., 400 F.3d 341 (6th Cir. 2005).
As you can see, there are potentially some major liability concerns for the city. When love’s ardor cools, your city must also not only be aware of your city’s harassment policy, but you must be aware of and follow your city’s retaliation against an employee policy, and sadly, even your city’s workplace violence policy to avoid liability based on the facts of a situation.
Heartbroken people can do some very stupid things. But heartache is no excuse to harass, threaten, harm, or retaliate against another employee under any circumstance. If your city offers an employee assistance program, please make a habit over the course of the year of providing your employees with the services that can be obtained through your EAP – including relationship counseling and domestic violence victim services. If a court protective order is sought, please let your employees know that the city needs to be aware to take all necessary actions to protect your employees and the public.
The city should also remind its employees several times over the course of the year of the city’s sexual and nonsexual harassment policies, workplace violence policy, and protection against retaliation policy. The more your employees know the steps and policies that your city has in place, the better off everyone in city hall and in your city will be should this become an issue.
Finally, your city needs to adopt a policy on fraternization that makes sense for your city and your employees. Some KLC cities have opted for a zero-tolerance policy on love in the workplace. No romantic relationships are allowed between any city employees – period. Other cities craft a policy that is mindful of the power dynamics between a direct supervisor and subordinate and bans any relationship between these employees.
Whatever policy you adopt, communication and disclosure are vital, and language in your policy should include that the failure to disclose such a relationship, whether permitted or not under the language of the city’s policy, constitutes grounds for discipline.
If the city forbids a relationship between a direct supervisor and a subordinate, the city will need to be prepared for the possibility that two employees may approach the city and ask for a reporting reorganization so that the direct supervisory relationship is no longer a factor. We do have some cities that allow this option. If your city does allow this option, careful consideration must be given to what happens when the relationship that necessitated the reorganization ends. Any adjustment made after the end of the relationship could pose a very real risk of triggering a violation of your harassment, retaliation, or even workplace violence policies.
The KLC Municipal Law Department is happy to provide sample fraternization policy language to cover a variety of city options in this area that range from zero tolerance on one end of the spectrum to a simple notification requirement of the relationship on the other. If you want to discuss fraternization issues further, call or email us.