Employee behavior surrounding office romances—which can occasionally devolve into sexual harassment or worse—was already one of the trickiest minefields that HR executives needed to police.
Now, that task has gotten even trickier.
In late January, a Delaware judge issued a landmark decision in a case involving fast-food giant McDonald’s, ruling that shareholders can sue not only the corporation but also its former chief people officer, David Fairhurst, over allegations that as CHRO, Fairhurst turned a blind eye to a toxic workplace atmosphere of rampant sexual misconduct. This included bad behavior by former CEO Steve Easterbrook, his close friend; Easterbrook’s ouster in 2019 caused shares of McDonald’s to fall sharply.
The ruling is a game-changer because it sets a new precedent in which HR leaders can now be held liable for failing to aggressively monitor and rein in an environment that permits sexual harassment in their company, according to experts like Melanie Naranjo, the vice president for people at Ethena, a leading compliance-training firm.
“Now that they [CHROs] can be held personally liable, they need to make sure they are empowered and trained and able to fulfill their role,” says Naranjo. That means navigating the complex power relationships among the CHRO, CEO and other C-suite executives, a task made even harder by the fact that many HR departments are already understaffed or under-resourced in the post-pandemic era. Despite that, she says the McDonald’s ruling makes it a lot tougher for CHROs to make excuses “for not taking action, or not having been aware of the red flags” around sexual harassment in the workplace.
A leading employment attorney, Hans Riede, with Washington, D.C.-based Quarles & Brady LLP, cautions that the McDonald’s case involved extreme behavior that included allegations of sexual misconduct by Fairhurst himself, as well as a culture of alleged sexual harassment that triggered an employee walkout. The case surrounding the fast-food company, Riede notes, involves “egregious facts” and ”a serious breakdown in HR policies and reporting procedures.” He recommends that HR executives report such clearly problematic misconduct to the CEO, or—if the CEO is personally involved—the board of directors.
But even apart from the issue of sexual harassment, the McDonald’s decision clearly adds yet another layer of complexity to issues around sex and romance within the office, and the role HR plays in establishing the rules. Research from SHRM has found that probably more than half of all American employees will be involved in a workplace romance at some point in their career, and a significant number of these lead to successful marriages. In other words, dating is something that companies generally can’t simply ban in the office as they might do with, say, alcohol.
However, experts do agree that HR departments can and should create specific policies that make clear the rules around dating and head off problems around sex and power dynamics at work. Hopefully, they say, these parameters will help prevent behavior that veers off into harassment or abuse.
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Ethena’s Naranjo says companies ought to have a written policy in easily understandable language—not legalistic jargon—that is relatable to employees’ everyday experience. Dating policies should be easy to grasp, with FAQs and opportunity for open dialogue. She notes that studies have shown that mandatory compliance training around sexual harassment is often counter-productive because it fails to address “the more nuanced gray areas and realistic situations that come up in the workplace.”
The dating policy at Ethena is both simple and humorous in places (it notes that the policies still apply at offsite meetings, which are not like the movie The Purge, where rules no longer apply). What it shares in common with most company dating policies is strict prohibitions against dating between bosses and the employees who work for them, as well as urging disclosure when a dating situation could pose that type of conflict.
“Any policy should be drafted to provide clear guidance on how to handle allegations of favoritism and conflicts of interest,” says Riede, the employment lawyer, who adds that it’s also important that such policies be tailored to the culture and the unique circumstances of a specific company.
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“The company should consider the complications and ramifications involved if, for example, two employees date from the same department or two employees from different departments date when the relationship could create a conflict of interest,” Riede adds. “For example, if one of the employees is in HR, will this create a conflict of interest or the appearance of a conflict?”
Naranjo adds one more important caveat: Keep company dating policies up to date. “If your policy is more than five years old, it probably doesn’t take into consideration that an employee can be harassed via Slack,” or on a Zoom video call. “Things change.”