Posted on January 23, 2018 in Employment Law
Given that most employees spend a lot of time with their colleagues and get to know them very well, it is no surprise that a significant number of San Diegans meet their future spouses at work, and workplace romances are actually quite common.
However, dating someone that you work with is not without its challenges, and many employers might prefer that their employees don’t get romantically involved with people that they work with. However, if you have fallen for a colleague or are dating someone at work in San Diego, you may be wondering if your employer can actually forbid you from doing this, or penalize you for your actions?
In this blog post, we will answer all of your questions about dating in the workplace, and your rights and responsibilities when you date a colleague in San Diego.
Under US law, dating a coworker is not illegal, and any rules or restrictions enforced by your employer regarding fraternization and dating people at work are employer-specific, rather than mandated in law.
Flirting with a San Diego coworker is not illegal – however, you have to be very careful about initiating romantic relationships at work or flirting with your colleagues, whatever your intentions – because if the other party is not receptive to your approaches, your behavior could cross the line into sexual harassment.
It is important to ensure that flirting with a colleague is welcome and consensual, and does not make your colleague (or anyone else in the workplace) feel uncomfortable, and that it does not affect your work – and vitally, if your colleague asks you to stop or otherwise indicates that they are not comfortable with the flirtation, that you comply with their wishes.
Across much of the USA, employers can legally prohibit employees from dating each other, including having the powers to terminate one or both employees involved in a workplace relationship.
That said, in California, state-level legislation designed to protect employees’ rights to privacy and a private life outside of work mandates that employers cannot forbid coworkers from dating, or fire you for dating a colleague.
However, even within California, employers have the powers to forbid certain types of workplace relationships at their discretion, if said relationship could potentially compromise the effective security, supervision, or morale of the workplace or business.
Flirting with a receptive colleague is not illegal, but it is very important to ensure that your behavior does not cross the line into the realms of sexual harassment in the workplace – which of course, is illegal.
Flirting may cross the line into sexual harassment if your approaches or actions are unwelcome or inappropriate, and persist beyond the point where the other party indicates or tells you that they want you to stop.
For instance, asking a colleague out is not likely to be classed as sexual harassment, even if the other party says no – but if you continue to ask after being rejected the first time, you may be crossing the line.
Bear in mind also the impact that your flirtation may have on other colleagues that witness the behavior as well as the target of your affections – if your behavior is overtly sexual or otherwise makes other people uncomfortable, even if the person it is aimed at is fine with it, you are again placing yourself at risk of having your behavior classed as sexual harassment.
Many San Diego workplaces have employee fraternization policies in place that require employees to inform their managers (or the company HR department) if they are dating. Check your company handbook or ask a member of the HR department about the employee fraternization rules and guidelines in place for your own company to establish the rules within your own specific workplace.
Ultimately, no workplace or employer can dictate who their workers fall in love with or date – and nobody can force you to end a relationship with another person.
It is reasonable to accept that in some situations, your employer might need to make changes to the working protocols of one or both parties in the relationship to accommodate an inter-colleague relationship in order to ensure fairness for all workers and to protect the company itself – such as if the relationship involves a subordinate and their direct superior.
Turning down the invitation of a date is almost always difficult; however, it can become even more so when the person asking you is a San Diego co-worker or, even worse, a manager, or boss.
Key to limiting any awkwardness is to thank them for their kind offer. While you are not obliged to explain why you won’t be taking up their offer of a date, it can help to eradicate the potential for the person feeling as though you’ve merely brushed them off. This approach can also minimize any feelings of rejection or upset.
Remember, the person asking you on a date may have had to work up the courage to approach you, so a little sensitivity goes a long way.
First things first – check with HR as to what policies are in place surrounding dating employees. As outlined in the question “Can I Be Fired for Dating a Coworker?”, your employer may prohibit dating between colleagues if it “compromises the effective security, supervision, or morale of the workplace or business”.
If there are no such policies in place, then it is time to consider how you should approach your colleague. As with dating in any realm, at work or otherwise, it makes sense to establish a friendly foundation to discover whether you’re compatible in terms of personality.
If you feel as though you could be compatible, you should make your date request casual – such as suggesting getting coffee. Bear in mind that the majority of sexual harassment cases are not about the fact that a colleague asked another on a date, but are instead related to how they asked and/or how many times they asked, with the other person consequently feeling uncomfortable. With that in mind, make sure you ask in an informal tone and, should you be turned down, accept it gracefully and don’t take it personally. Do not repeatedly pursue the person by asking again – this can be considered as sexual harassment.
If your invitation is accepted, and leads to further dates, you should consider whether you’re required to disclose your relationship to your employer. You should also pay due care and attention to your conduct and behavior while at work. Even if someone else feels uncomfortable about the way you interact – such as demonstrating overtly sexual behavior or flirting – again, you could be subjected to a sexual harassment claim in San Diego.
Consensual dating is where both parties who are dating are doing so of their own free will. There is no coercion, manipulation or feelings that one is obliged to date the other, whether this be to avoid awkwardness or due to the other party being in a management role above them.
HR may choose to ask that both parties sign a “consensual relationship agreement” document, which explicitly states that the relationship is “welcome and consensual” on both individuals’ behalf.
This may open with something similar to the following…
“We, the undersigned employees, have voluntarily entered a social relationship. We acknowledge that [Employer] is committed to providing a workplace that is free of harassment, discrimination, conflicts of interest, and favoritism, and that [Employer] will not tolerate unwelcome or offensive conduct, conduct that creates a hostile work environment, or sexual harassment. We have read and understand [Employer’s] anti-discrimination and anti-harassment policies.”
Unless your HR department prohibits dating between colleagues due to “compromising the effective security, supervision, or morale of the workplace or business”, then you should consider taking legal action.
Bear in mind that it’s important to be certain that your colleague considered your relationship has consensual. Where an individual is not willingly dating another person – for example, where the other person feels pressured to date the other as they are their supervisor or manager – there may be grounds for a sexual harassment claim.
If you need advice on employment law or if you have been unfairly penalized by your boss because you are dating a colleague within the remit of the law, speak to an San Diego employment attorney today.
Walker Law specializes in matters of employment law in San Diego – so if you or your partner have been unfairly penalized by your employer for your relationship, or if you’re not sure of your rights, contact us now for independent, impartial advice.