In a proactive attempt to combat the issue of workplace sexual harassment, Facebook and Google have implemented new policies on dating in the workplace. This new approach adopts a “one strike and you’re out” rule, which states that employees only have one opportunity to ask a co-worker out on a date. If the co-worker rejects their offer, that employee is not allowed to ask again.
Like Facebook and Google, most employers have recognised that workplaces are often environments in which their employees will develop personal friendships with each other, and some will enter into relationships that are more than that. This does however create difficulty for employers who have significant obligations to ensure that the health and safety of their employees is not put at risk in the workplace and that such relationships do not result in conflicts of interest.
Up to now, employers have sought to balance these interests by doing things such as implementing policies on the disclosure of personal relationships in the workplace, relocating employees where a conflict of interest might arise and even getting employees to sign “love contracts”.
However, we are now in a period where the rules of dating (and particularly what is consensual and non-consensual) are in a “grey zone”, and the question being asked is – how do employers manage employee relationships when there are wildly different views on what is consensual and non-consensual?
The “one strike and you’re out” policies are Facebook and Google’s public response to this new dilemma. Its effectiveness in combatting sexual harassment is however yet to be seen, and employers must consider the potential consequences that can arise.
On one view, these policies remove this grey zone entirely and make it clear that when it comes to dating in the workplace, anything other than an unequivocal “yes” is a “no”. It is a simple statement that ensures their employees are not in two minds about what is consent and what is not consent, and what is acceptable and what is not acceptable conduct.
In a podcast published by the ABC, Australia’s Sex Discrimination Commissioner, Kate Jenkins, very succinctly described this new policy as “an attempt to give a real-life example of what sexual harassment might be”.
On another view, these types of policies draw an extremely hard line on workplace conduct and behaviour that might be very difficult to enforce in reality and can have seriously adverse consequences for employee interaction in the workplace.
By trying to implement a ”one strike and you’re out” rule, employers run the risk of creating a workplace where their employees are deterred from developing any type of relationship at all with other employees, for fear of being accused of sexual harassment or some other kind of misconduct that warrants disciplinary action.
It’s time to go back to the basics
Before considering a new policy to heavily regulate office romances, employers should consider options that have a more realistic chance of being enforceable and accepted in the workplace. For example, ensure that all staff regularly undergo anti-discrimination training so that they understand what is and what isn’t harassment.
Under the Sex Discrimination Act 1984 (Cth) (SD Act), a person will be sexually harassed if:
Well-drafted policies should note that, whilst each incident will be considered having regard to the particular circumstances, the legislation will be the standard for issues concerning sexual harassment.
Of course, providing regular training to employees on this policy will give it practical value and ensure that employees know how seriously sexual harassment is viewed in the workplace. It is crucial for employers to reinforce these definitions and to reiterate that sexual harassment by any person in the company will not be tolerated under any circumstances.
Poorly managing and over regulating behaviour and relationships in the workplace can have a negative impact on the workplace culture, employee engagement, retention and recruitment. Educating employees on how to behave appropriately, just might be a better way to create positive workplaces rather than police-state environments.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
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