We’ve answered a lot of questions about the workplace, but never one like this.
Hi Sharlyn, I really enjoy your blog. I’m hoping you can provide me with some advice. One of my employees is having a sexual relationship with my boss, our department vice president. She told me about the affair a year ago, and I suspect it is still going on. I haven’t disclosed the relationship to human resources because I don’t want to betray her trust. I encouraged her to disclose the relationship to HR because the VP is in our direct line of reporting but this has not happened because they are both married. What are my legal obligations? Is my job at risk? Thanks for your advice.
To help us with this situation, I asked our friend Kate Bischoff to share her knowledge. Kate is an employment attorney and HR consultant at tHRive Law & Consulting LLC. She’s shared her experience with us before – one of my favorites is “Should I Quit or Wait to Get Fired”.
Please remember that Kate’s comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have specific detailed questions, they should be addressed directly with your friendly neighborhood labor attorney.
Kate, the first thing that popped into my mind was whether the company has a policy about employees fraternizing with their boss. What are the pros (and cons) to having a fraternization policy in the employee handbook?
[Bischoff] Like any policy, a fraternization policy sets employee expectations. It warns employees not to engage in relationships at work or at the very least, report any relationships they have at work. Such a policy then supports any decision to let an employee go for failing to meet this specific expectation. (Lawyers hate trees, so this particular piece of paper could come in handy later.)
But because love has “fueled national scandals, bankrupted robber barons, and made mincemeat of kings,” I’m not sure that a fraternization policy really has any power to stop relationships in the workplace. In the situation above, the commitment both made through their marriages to others hasn’t stopped them, so a policy probably won’t either. Plus, employees read these policies. Having such a policy suggests that an employer doesn’t trust employees to make good decisions, which could hamper efforts to build a culture of trust.
Obviously, in this situation, the individuals involved in the sexual relationship have a employee / boss reporting relationship. Why is this risky for the employer?
[Bischoff] Under the law, managers are the company. When the boss engages in sexual harassing behavior, the law says the company has knowledge of the harassment and has not stopped it, making the company liable for whatever the manager did. When a reporting relationship exists and there’s a harassment, the employer can be strictly liable (meaning automatically on the hook) for a sexual harassment claim brought by the employee or others.
There are multiple ways in which an employer could be in trouble. Here’s an example, Amal is a manager, and Jimmy is her direct report. Amal and Jimmy have a passionate affair. Amal and Jimmy break up, and Jimmy starts to come to work late. Amal disciplines Jimmy for being tardy, and then Jimmy alleges he was never disciplined while he was sleeping with Amal. Jimmy brings a sexual harassment claim. Another possibility, during the affair, Amal gives Jimmy a great assignment and Steve gets jealous. Steve could allege Jimmy is getting preferential treatment because he is sleeping with Amal, and Steve brings a discrimination claim. Amal and Jimmy’s reporting relationship makes this super risky.
If HR knew about this situation, is there anything they can do? I’ve heard about “love contracts” but wonder if it would work with both the employee and their boss being married.
[Bischoff] I would change the reporting lines if possible and preferably move the vice president so the employee doesn’t lose anything. Sitting both of them down to talk about the risks could be a possibility.
There’s nothing HR can or should do about the folks being married – what would be way outside the lines for any employer and probably illegal in some states – but both would likely be highly scrutinized, their work evaluated more closely, and some trust destroyed with colleagues. Whether the scrutiny is warranted would be up to a jury later if a lawsuit was brought, but nonetheless, the manager’s conduct suggests poor decision-making.
As a human being, I understand the manager’s reasoning behind not telling HR, but as a HR professional, doesn’t this present an ethical dilemma? Aren’t there moments when we must tell employees we cannot keep their trust?
[Bischoff] YES! HR and managers are put in difficult positions because they have obligations to employees and to their company. In situations like this, neither cannot keep silent. Their obligations to the company – to protect more than just the one employee, but all employees – is more important than the confidence of an employee. When an employee reports potentially harassing behavior, but “just needed to get it off her chest” or just needed a “shoulder to cry on,” HR pros and managers have to take action. Keeping silent puts everyone at risk.
Then there’s the employee’s manager, who knows what is happening between the employee and their boss. Are they at risk? And is there anything they can do to mitigate their career risk.
[Bischoff] You bet they are at risk! Managing people to work to the benefit of the employer is the first job of any manager. When a manager knows that her people are doing something that could hurt the employer (like the potential for a sexual harassment lawsuit) and the manager keeps silent, that should hurt the manager’s career within the company. When a manager finds herself in a position like this, she should look at the company’s harassment policy, seek out HR, and let HR do what it needs to. No manager has to deal with the relationship on her own, that’s what HR and senior management is there to help with. Keeping silent is just not an option.
I want to extend a HUGE thanks to Kate for sharing her experience with us. If you want to read more of Kate’s insights, be sure to check out her blog. It’s a must read.
I understand this isn’t an easy situation. And sometimes as managers we want to be understanding and cool, so we try to turn our heads to what’s happening in the organization. But there are times when we simply cannot. I’ve said this before: Employees need to feel they can report concerns to the organization and their concerns will be properly investigated. Not only is there a liability to ignoring the situation, it’s just not the right thing to do.
Image captured by Sharlyn Lauby outside of The Custom House Museum in Key West, FL10