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Managing workplace romance. As the millennium approaches, the makeup of the American workforce will mirror a family, rich in diversity and complexities. Ten years ago a Bureau of National Affairs study found that nearly a third of all romances began at work. [FOOTNOTE 1]It also has been calculated that between 6 and 8 million Americans enter into such relationships every year and that about 50 percent of the time the result is either a long-term connection or marriage. [FOOTNOTE 2] In light of the cost of hostile work environments that result from failing to limit complaints of sexual harassment, sexual favoritism and retaliation, many employers are looking for ways to manage workplace romance as a part of the overall risk management initiative. Corporations of all sizes are asking themselves: Should we have a policy prohibiting dating between supervisors and subordinates? What about the privacy rights of the workforce and morale of the employees? Do we want to create strict policies and procedures to alter workplace travel and holiday parties? How do we deal with the emotional downside of a workplace romance gone sour? There are no simple answers to the questions asked, but the forum for handling such conflicts can convey an important message to employees. Using alternate dispute resolution can send the message that we are a family of workers spending many hours doing our jobs with our co-workers. When we disagree, let’s resolve our differences in a private setting, where the parties can listen to the claims raised, respond, and retain control over the solution. Some form of alternate dispute resolution can be explored to fit the personalities of the disputants, such as an open door policy, a conference option, facilitation, mediation, or arbitration, to mention a few. To retain good employees, an atmosphere of fairness and openness may be key to conflict resolution. The notion that companies should not feel threatened by office romances, which are a natural occurrence, but accept the reality and manage the relationships is an ideal espoused by Dennis M. Powers, an associate professor of law at Southern Oregon University. He also maintains that “[t]he American people have been socialized into thinking about intimacy and work as separate compartments of life. And that is simply not true.” [FOOTNOTE 3]How do we deal with the emotional downside of a workplace romance gone sour? Given that the work environment is another space-and-time component of our daily existence, it makes sense to create options for problem solving in a respectful and private manner to address personal and emotional issues flowing from the workplace. Supportive persons can be selected to facilitate a solution that the parties both suggest and implement. THE RESULTS OF LITIGATION To understand how an employer can better manage internal conflict, let’s examine the results of litigation. Consider the following fact pattern: An office supervisor virtually daily engaged in horseplay of a sexual nature with female subordinates. This behavior included sitting on subordinates’ laps, touching them in an intimate manner, and making lewd comments. The subordinates joined in and generally found the horseplay funny and inoffensive. With the exception of one incident, none of the horseplay was directed at the plaintiff. The supervisor additionally engaged in consensual relations with at least two of his subordinates. The court found that the supervisor’s conduct would have interfered with the work performance and would have seriously affected the psychological well being of a reasonable employee, and on that basis found a violation of Title VII. Although this case did not involve sexual favoritism, the court stated that pervasive sexual conduct can create a hostile work environment for those who find it offensive even if the targets of the conduct welcome it, and even if no sexual conduct is directed at the persons bringing the claim. [FOOTNOTE 4] This result, which required the participation of the parties, their lawyers and the court, could have been achieved by the parties themselves if specific safeguards had been in place. Missing from the litigated result are the following considerations: a. Did the involved supervisor ever apologize to the plaintiff, and what is the emotional importance of having done so for the workplace? b. Have the parties discussed their various perceptions of what was inappropriate or what offended some and not others? c. Did the hostile environment victim have an opportunity to communicate and share the emotional cost of the hostile environment? d. Did the parties discuss the effect of the consensual relationships on the co-workers’ performance evaluations and chances for success? e. Did training address what constitutes a hostile environment, and did the parties understand the policies of zero tolerance? f. Did the victim have an opportunity to make suggestions or requests that might have prevented the hostile environment? Allowing parties to participate in the resolution process not only allows for their input, it can empower and potentially increase productivity. Managing the dispute at the earliest stage possible, in a private setting where the parties retain control over the issues, is more time-efficient and results in better risk management. Managing the dispute at the earliest stage possible, in a private setting where the parties retain control over the issues, is more time-efficient and results in better risk management. FOCUS ON PERCEPTION Education is the first phase of managing workplace romance, especially if managers are involved with subordinates. Since workplace issues focus on human interaction, including interpretation of the spoken word, as well as physical and mental relationships at work, perceptions define the truth and become reality. These perceptions can be the basis for a lawsuit if the dynamics between parties are not understood. When a conflict arises because a romantic relationship formed at the workplace has failed, the parties feel vulnerable and may reinterpret facts to make themselves feel emotionally safe and correct. The party with more “power” in the workplace likely will use it to create a picture that justifies his or her actions. If at this juncture the parties can take advantage of a confidential, internal dispute mechanism such as mediation, there is a chance that the perceptions of each party can be expressed. The parties can listen to one another and see the other’s position through a less emotional lens. Then a solution can be designed that will allow both persons to feel they have been heard and given the appropriate respect. Experts can make it easier for the parties to hear what is being said and feel empathy for the pain inflicted. Because mediation can foster and encourage healing, the process itself may be more beneficial than a monetary award, especially if it leads to an understanding of each party’s perceptions. Through mediation, a supervisor who has engaged in sexually harassing behavior can hear and see the victim’s pain, and the harasser can begin to understand why his or her actions were inappropriate. Employers should incorporate zero tolerance sexual harassment policies directly into supervisors’ job descriptions. Employers must clearly articulate their expectations. When a complaint is referred to mediation, the supervisor may be able to delineate how his or her perceptions resulted in prohibited conduct and thus provide guidance for other supervisors. Once a complaint of workplace romance turned sour has blossomed into a claim of sexual harassment, an employer must ensure that the supervisor involved does not retaliate. Because retaliation claims are not necessarily based upon an employee’s initial complaint, the underlying claim need not be proven to win a retaliation claim. Further, punitive damages can be awarded. Complaints arising out of failed workplace romances are generally complex and emotionally charged. Given this complexity, there are great advantages to using mediation. Once a person understands how the victim viewed certain subtle workplace actions after the relationship ended, such as less lucrative work assignments, then the person who acted improperly may be willing to provide a meaningful apology. Such an apology potentially can bring great satisfaction to the less powerful party. Complaints arising out of failed workplace romances are generally complex and emotionally charged. This option rarely occurs in a litigated setting where the parties and positions have become inflexible. A mediation process that emphasizes each party’s perceptions instead of blame creates respect for exposing the issues and encourages parties to use the complaint procedures. WORKPLACE LEARNING THROUGH MEDIATION A United States appellate court [FOOTNOTE 5]recently determined that an employer acted lawfully when it fired an employee for poor performance 15 months after the employee alleged sexual harassment. The employer had promptly and appropriately responded to the female employee’s sexual harassment complaint. Consider these facts: The employee claimed that sexual harassment began after she refused a date with one of her co-workers. For three years, the spurned co-worker allegedly looked at her in a sexual manner, made sexual comments, touched her hair, shoulder and breasts, and rubbed the front of his body against her buttocks. After the employee complained, the employer investigated. Although it could not corroborate the charges against the co-worker, the employer still reminded him of its sexual harassment policy and told him to avoid any non-work-related contact with the female employee. The employer gave the plaintiff two weeks off with pay and offered her a transfer to another position. When she later complained that the co-worker was still bothering her, the employer moved her to another work station and arranged an escort for her whenever she might have contact with him. Imagine what might have happened if, instead of firing the female employee for poor performance, the employer had attempted to mediate the issue. As it now stands, the employer lost the opportunity to rehabilitate the victimized employee and still may have a harasser on the job. Notably, the employee made no argument that her performance had deteriorated as a result of the harassment. Yet it was undisputed that the employee had received average or above average performance ratings for most of her tenure, only after the harassment did her performance deteriorate. If the parties had been given a chance to confront and listen to one another, then the employer might have gained precious preventive information. The employer did take remedial action in response to the female employee’s complaints; however, the remedy was not successful in creating a safe working environment. Why wasn’t the alleged harasser individually coached or trained concerning sexual harassment? Obviously, his perception of what is allowed in the workplace creates a risk for other workers and ultimately for the employer. If the alleged victim had solicited an apology from the alleged harasser through mediation, then a learning curve would have begun for that workforce with regard to zero tolerance for harassing behavior. It has been said that “[r]elationships, more than information, determine how problems get solved or opportunities exploited.” [FOOTNOTE 6]To maintain a non-hostile workplace, issues of a relational nature need to be better managed in the workplace. Mediation should be an option in a workplace anti-harassment policy to ensure that prompt attention will be given to employees’ perceptions of acceptable workplace behavior, especially when a romance goes awry. Employer policies that provide fair treatment and open lines of communication can prevent employment disputes from ending up in litigation. An employee’s perception of fairness begins on the first day he or she is hired and is influenced strongly by how respectfully workplace disputes are resolved. This article is excerpted with permission from CCH’s Journal of Alternate Dispute Resolution in Employment, Winter 2000 Edition. Lindy Korn is President and CEO of Diversity Training-Workplace Solutions, Inc., a consulting firm that provides training as well as executive coaching and conducts investigations utilizing a psycho-legal approach. Ms. Korn is an attorney who has served as a former Commissioner of Workers’ Compensation of the State of New York, hearing and deciding thousands of workplace claims involving stress, computer injuries, back injuries, sexual harassment and discrimination. Ms. Korn was admitted to the practice of law in 1979 and presently serves as a mediator for the EEOC-Western New York region. She is Chairwoman of the Alternate Dispute Resolution Committee for the Bar Association of Erie County, serves as co-chair of the Diversity Committee for the Women’s Bar Association of the State of New York-Buffalo chapter, and is a Board Member of the National Association of Women’s Business Owners-Western New York Chapter. She can be contacted at [email protected] . FOOTNOTES: FN1James Lardner, Cupid’s Cubicles, U.S. News & World Report, December 14, 1998, at 44. FN2Dennis M. Powers, The Office Romance: Playing with Fire Without Getting Burned(Amacom, 1999). FN3Danielle Stanfield, Law Professor Published Defense of Office Romance, The Chronicle of Higher Education: Research & Publishing, August 13, 1999. FN4 Spencer v. General Electric, 697 F. Supp. 204 (E.D. Va 1988). FN5 Caudillo v. Continental Bank, 1999 U.S. App. LEXIS 17915, No. 98-3032 (7th Cir. 1999) (unpublished opinion). FN6Thomas Davenport and Laurence Prusak, Information Ecology: Mastering the Information and Knowledge Environment, Oxford University Press, 1997. � 2000, CCH INCORPORATED. All Rights Reserved.

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