Note: I use examples of men and women here where the aggressor is the male. Harassment does not depend upon gender or sexual orientation. Wherever a more powerful employee has romantic designs on a less powerful employee, regardless of gender, an harassment claim is possible.
If you’re single, one of the easiest places to meet people is the workplace. Many American workers spend more time with work colleagues than with their families and non-work friends. There are plenty of articles about the pros and cons of dating colleagues and some companies have policies on it. These may include things like – the couple can’t work in the same department or have a boss/subordinate relationship, etc. What we haven’t seen is a discussion of the intersection of romantic overtures and potential harassment claims. Most HR professionals are ill-equipped to guide leaders and others through this minefield. This is not a legal primer on harassment – it is about the subtler social dynamics and human behavior involved in workplace relationships. Terms used: Asker (person making the advance) and Askee (person being asked)
“To begin a relationship, one has to make the first move. But . . . when does an innocent ‘ask’ become illegal harassment?”
Pass, overture, advance – in this article, these terms are interchangeable and all describe one person indicating to another that he/she would like to see them socially. It involves a verbal exchange. I say this because there are SOME (a minority for sure) who think the way to indicate interest is to move into unsolicited romantic touching. Unsolicited romantic touching others at work is ill-advised.
The “workplace” context where the overture takes place between co-workers includes when the advance is offered at work, at work functions or at social functions where primarily work colleagues are in attendance (i.e., drink after work).
Examples used here cite claims of men harassing women as roughly 80+% (EEOC stats) of sexual harassment victims/survivors who report or sue, are women. But let’s not condemn all men – #NotAllMen. It happens that powerful men who fall make good news stories and are widely publicized. Finally, in the interest of space, my examples do not include powerful customers; external vendors; or other suppliers who enter the workplace. Federal harassment statutes place the burden squarely on the employer to respond to complaints regarding these parties, as well.
A reasonable verbal indication that you would like to see someone socially will generally be seen as innocent and acceptable. This would involve two individuals of similar rank. One person asks the other out and the other feels free to respond. To maintain innocent status, whoever does the asking must abide by the response. If it’s a, “No thank you,” the asker respects this and moves into the friend zone without drama, negative comments, gossip or retaliation of any kind.
Not so innocent
This exact same “innocent” scenario described above moves into troubled territory under the following circumstances:
- When there’s a power differential between the parties. An obvious power differential is when a higher-ranking employee asks a lower ranking employee for a romantic relationship. It doesn’t matter whether they are in the same division. Another scenario could involve workers who are at the same level but the workplace is male dominated. Take the tech industry. There are dysfunctional corporate cultures in which a lower level male could have power over a same-level or even higher-level female through a kind of “bro culture.” Finally, owner’s relatives in a family business would have power over many other employees even if they worked in the mail room. A reliable clue to a power differential is when the askee does not feel free to say, “No thanks.”
- In the moment, when the asker responds disrespectfully to the askee’s declination. This is a pivotal moment where things slide into actionable territory. Verbal protests, insults or criticisms of the askee, negative comments about her looks, work performance, etc. – all of these responses set up an adversarial relationship that will most likely be understood by the askee as indications that they’ve done something wrong when declining an invitation. The moment a women loses control over her social freedom and begins thinking of the asker or the workplace as hostile toward her ability to do her job, trouble is likely ahead.
- Post overture, when the asker continues the pursuit. Continuing to ask in different ways is generally not seen by women at work as flattering. Some women like to be pursued by potential partners in their non-work social environment but inside the work environment it is pretty much unwanted. It distracts from the women’s performance, essentially what they were hired to do. But more importantly, it erodes the feeling of freedom and safety to navigate the workplace without regard to askers ongoing behavior. Though some women in some situations will lean in and offer a hard-to-ignore declaration that this must stop, most will second guess themselves and begin to experience ever-increasing stress about the situation described here.
- When the asker moves into retaliation. This is such an obvious violation of both the spirit and letter of federal harassment provisions that it’s surprising when it shows up as a pattern of workplace behavior. It shows that leaders are either ignorant of the law or blind to obvious retaliation right under their noses. We have seen powerful men keep untoward behavior secret. There is a wide continuum of retaliation tactics and I have seen it all. Less severe would be subtle changes in work schedules or inconsequential favors to others. The most severe I’ve ever heard was Harvey Weinstein’s alleged hiring spies to stalk the activities of women he felt might talk about his assaults or take legal action against him. While the young women he targeted were not technically employees, he clearly had power over their career trajectory.
Common types of retaliation include:
- Marginalization – leaving a name off of an important meeting invitation, encouraging others not to speak to a targeted individual
- Blocking advancement – advocating for holding back promotions or advocating for others to advance
- Withholding key information which makes good performance more difficult
- Reserving plumb assignments or the best schedules for allies
- Exploiting or exaggerating mistakes made by the targeted individual
- Preemptory strikes to blame the targeted individual for something folks would see as outrageous or objectionable, diverting attention from their own misdeeds
In some cases, retaliatory tactics are repeated to the point that the targeted employee feels they have no alternative but to quit. At this point a sexual harassment claim is fairly straightforward. Further the targeted individual can allege “constructive discharge” where some statutes could be applied as though they had been fired.
The problem with “consent”
Men who rely on characterizing a workplace relationship/liaison as “consensual” should understand that consent implies the individual was genuinely free to say no in the moment and, that it will be mutual when such a relationship ends. Examples noted above discuss how a woman’s perceptions here can be key. In my view, it’s unlikely that a truly consensual relationship between a powerful male and less powerful female would be possible in the workplace. Men have painted a target on their own backs when a relationship with a less powerful woman they’ve pursued, sours. However much in love you think you were, during the break up, it looks bad, is bad and plaintiffs’ attorneys will be happy to take the case.
I have known women who willingly enter into a consensual relationship at work perhaps with an eye to advantage. The trouble is that these women can underestimate the trouble ahead. Some of my male friends have expressed concern that even if the woman pursues the relationship, no one is going to believe the man in the current environment. I’ll admit that this may be true, in social movements like #MeToo, the pendulum swings back and forth from one extreme to another until reason prevails. I would advise men to be wary of romance in the office or at least to understand the concepts noted here and go in with their eyes open. Same advice to women. You should really think about whether the likelihood of issues down the road are worth it. One of you may be required to leave your job and it’s typically the woman who leaves. If you lead the organization, you would be wise to avoid romantic entanglements among your staff. There is a power differential between you and all of them.