Intra-Office Romance & Retaliation

Many employers’ fears of drawing a sexual harassment claim prompts a ban on intra-office dating.  Consensual, intimate and sexual relationships between co-workers is not prohibited by Title VII (and other related local laws).  However, the existence of such relationships certainly increases the risks of such claims arising and creating circumstances that may be ripe for retaliation claims.  

Why?

The problem with consensual relationships is the ability to confirm that, at each step of the relationship and at every moment, both individuals are voluntarily engaged in it.  Where one partner has more authority or influence in the workplace than the other, a risk exists that the less empowered employee may “stay in the relationship” or “go along with things” or “delay or not say no/break up” for reasons that then smack of quid pro quo sexual harassment.

Additionally, when a consensual, romantic relationship in the workplace ends, a real risk of a retaliation claim and a quid pro quo sexual harassment claim goes up exorbitantly.  Such dramas make headlines.  Like story lines from a soap opera, spurned lovers may use the workplace as a playing field of revenge, even enlisting co-workers to shun or otherwise afflict the work environment for the ex-partner.  Tales of less desirable assignments after the break-up (and because of the break-up) are legendary and costly to everyone involved.

What can workplaces do to minimize these sorts of issues from arising without prohibiting intra-office romances?  

  • Have a strong and well-implemented policy that prohibits sexual harassment and retaliation.
  • Train managers and employees regarding expectations and how to report problems.
  • Have strong Human Resources professionals who not only know the law, but also have strong investigation skills.
  • Have competent legal counsel available for “hot line” calls and issues.
  • Know local workplace investigation firms to assist with investigations into complaints and concerns about harassment and retaliation. 

  

Email: What You Say When No One’s Looking?

Discrimination and harassment lawsuits can be complicated.  How does a party prove that the other party holds racist, sexist, etc. beliefs?  It can and has been done without “confessions.”  In today’s world, emails are where individuals may show their “true colors.”   

Recently, for example, an employer uncovered racially charged emails sent by an employee over its email server.  Problematic?  You bet!  

In this case, the employer responded quickly to an employee’s complaint about a racially charged email and directed that an investigation ensue.  In so doing, the employer will be able to identify the scope of the problem, rectify – if possible – employment related harms that may have been committed by individuals that appear to harbor racist sentiments, and discipline and train employees who are retained moving forward.  

Additionally, the employer’s quick action demonstrates that its walk matches its talk when it comes to such problems.  A fact that will encourage employees to act professionally and respectfully and to raise concerns with confidence that they will be addressed by the employer.  Will this response to the complaint stave off a lawsuit?  There is no guarantee, and certainly the scope of the problem may be too big to ignore. But, investigating and taking action quickly to stop further problems is rarely something that will be frowned upon by a judge or a jury.

Divorce Mediation: Is there a Downside?

Andy Flink is an experienced divorce mediator with One Mediation.

Recently, I asked several family law attorneys and judges in the Atlanta area their thoughts on both the positive and negative aspects of mediation.  The answers I received were interesting and decidedly positive.  Mediation was considered to be the best alternative in divorce cases, especially when there are minor children involved.

Mediation was, however, deemed to be a negative in those rare cases where either one side conducted themselves in an unreasonable and unnecessary manner or when one side appeared at a session completely unprepared.  In these instances, the majority of attorneys I spoke with still believed there was some small measure of progress, even if it was acquiring the knowledge that settling was going to be more problematic.    Judges that I spoke with also promoted mediation.  They would prefer the family make the life-altering decisions amongst themselves rather than be put in the position to make them for people they knew very little about.

These illustrations do not include cases where abuse, violence or significant power imbalances are present, which are considered to be cases that are inappropriate for mediation.  As well, there will certainly be cases that present themselves as those that will never settle in mediation and will require litigation.

Many of these attorneys and judges also believed that a positive and productive reason to mediate was to simply create the scenario where everyone had to be in the same place at the same time.  Trying to schedule five or more people to meet together was daunting in itself; being forced to meet was actually a good thing:  This initial mediation session might be the first time attorneys meet each other in person.  Everyone also agreed that by settling the case sooner through mediation the parties, especially those with children, could move past the conflict and concentrate on parenting.   The financial benefits to the parties were also significant if the case settled sooner – as one attorney told his client in a case where I was the mediator:  “If you settle now you’ll be able to send your kids to college, if you want to drag this on, we certainly can, but you’ll end up sending my kids to college.”

In mediation, I have one goal in mind:  to settle, perhaps with a full settlement, or sometimes with a partial or temporary one.  Regardless of what the parties or counsel say to me about how difficult or impossible the case is, or how meeting will be a “significant waste of time,” I’ll consistently look for and hopefully find the “wrinkle” that gets the parties moving forward.  This is especially satisfying when at the end of a session we’ve reached agreement and counsel explains that they “never thought this case would settle.”  I am always glad if it did – but even if it didn’t, I believe it’s always worth an attempt.  I may feel that the session wasn’t productive but, like most of you who I work with, my consensus is the same:  there is very little downside to what can result in a potentially worthwhile outcome for everyone involved.

Andy Flink is a successful businessman, mediator, and father in a blended family.  Email Andy with questions or comments.  

Workplace Investigation Training Module I Approved for 6.5 CE Hours (HRCI)

This advanced program, along with the Module II Practicum, is designed to cross train in-house counsel and to enhance the skills of Risk Management and HR professionals for conducting investigations into bullying, discrimination, harassment and retaliation.  Agenda:  https://onemediation.files.wordpress.com/2012/03/workplace-investigation-training-module-i-agenda2.pdf

Module I is day-long seminar that provides a detailed overview of how properly to investigate concerns or allegations of personnel misconduct in a thorough, fair, and well-documented manner that contemplates potential litigation. Significant time is spent on investigation plans, document gathering, techniques for interviewing witnesses, and report writing. Both Module I and Module II focus on putting information into action through group and individual activities that reinforce the learning objectives.
REGISTRATION:
Module I is offered in Buckhead on April 20, 2012, June 15, 2012 and September 29, 2012, starting at 9:00 a.m. and ending at 4:45 p.m. Early Bird Registration ($295) closes 30-days before the session. Regular tuition: $395.00.
Module II Practicum is offered on a Friday/Saturday format. In 2012, it is offered two times: June 22-23 and again October 5-6. Regular tuition: $995.00 (Early Bird: $825).
Registration for both Module I and the Module II Practicum is $1,300 (Early Bird $1,100).
FACULTY:
Faculty include Lorene Schaefer, Esq., Jennifer Keaton, Esq., and Suzanne Deddish, Esq. These attorneys and workplace investigators have significant Labor and Employment litigation experience regarding EEOC Charges, Sarbanes-Oxley Charges, tort claims, and internal grievances that involve concerns of harassment, discrimination, bullying, poor leadership/supervision, and whistleblower and retaliation concerns. They put their litigation and investigation experience to work with these active-learning seminars.
Call One Mediation for more information (404-720-0599).

Atlanta – April thru June 2012 Divorce Education Resources – Metro-Atlanta

There is so much information on the internet about divorce and the divorce process that it can actually be more confusing than helpful.   Why isn’t there some sort of “Divorce School” or “Divorce Tutor”???  Actually, there is…but sometimes they are hard to find in the midst of all the noise.

Here’s a quick listing of some Atlanta Divorce seminars and more:

April 21, 2012Divorce 101 (9 a.m. – 4 p.m./Perimeter/$89) – Women Only

April 21, 2012 – Collaborative Divorce Seminar (9:30-11 a.m./Smyrna) – Co-Ed

April 28, 2012Speed-Divorcing – (10 a.m. – 2 p.m./Perimeter/$47)  – Co-Ed (limited to 10 participants)

May 5, 2012How to Mediate Your Divorce – (9 a.m. – Noon/Buckhead/$50) – Co-Ed

June 15-17, 2012Divorce Survival School Weekend – (Overnight/Payment Plans Available) – Women Only

Parenting Seminars (which satisfy certain court requirements) – Newnan/Carrollton Area, Douglas & Nearby CountiesCobb County, Fulton County, DeKalb County, Gwinnett County.   Dates vary and are held frequently each month.  Usually $30 – Keep Your Certificate of Completion!

Divorce Consulting/Mediation Coaches.  These divorce mediators help individuals facing divorce get ready for mediation, answer questions about the process, prepare and prioritize for negotiations and working out solutions, and sort through ideas on “how to make it work” during the changes of separation and divorce:  JoAnne Donner, Andy Flink, and Jennifer Keaton.

Local Certified Divorce Financial Analysts and Financial Neutrals.  These individuals help get your financial records in order, uploaded, and analyzed with an eye to division, taxes, budgets and more:  Lisa Decker, Anitha Rao.

Workplace Investigations: How Much Inquiry’s Necessary?

 

When an employee raises a concern about workplace misconduct – even when it may not directly involve him or her – good employers will conduct some kind of follow-up on the concern.  This “initial review” often is a preliminary discussion to get enough information to make some assessment as to how significant the problem could be – is it a pervasive issue, is it an interpersonal issue between only two individuals, can any of the concerns be corroborated by minimally invasive measures such as an email search.  

In some instances, this initial review may become the totality of the investigation because nothing further was needed.  On other instances, the initial review may be the tip of the iceberg and serve as a means to understand and clarify the issues sufficiently to turn over to an investigator.  

The rub for employers is when the initial review is the investigation, but this review is insufficient to address the concerns that were raised.  When the investigation is a cursory and incomplete review, the drawbacks, to name just a handful, involve:

  • the strong potential for employee perception that complaints “go nowhere”
  • the image that the employer does not take concerns seriously
  • the perception that complaints will not result in any real concern or change on the part of management
  • a lack of motivation for employees to raise future concerns because the belief that it is a futile proposition and
  • the risk of increased liability for torts and other claims that may exist that relate to the concern

Human Resources professionals can combat these longer-term, negative issues by articulating and following a clearly defined process with respect to addressing employee concerns in a manner that is commensurate with the concerns.  Notably, the fact that some follow-up has been done – even if results of the inquiry are not shared – should always be communicated back to the employee who raised the concern.  Acknowledgement that these employees have been heard and action occurred, as a result, is often overlooked and leads to unfortunate consequences with respect to morale.