North Carolina Association of Municipal Attorneys 2010 Annual Summer Conference August 5-7, 2010

1. North Carolina Association of Municipal Attorneys 2010 Annual Summer Conference August 5-7, 2010 Patricia L. Holland Jackson Lewis LLP 1400 Crescent Green, Suite 215 Cary, North Carolina 27518 919-424-8608 patricia.holland@jacksonlewis.com

2. Crossing the Line:When Co-Worker Romance Turns to Conflict Patricia L. Holland Jackson Lewis LLP 919-424-8608 patricia.holland@jacksonlewis.com

3. Nearly 1/3 of all romances begin at work Between 6 and 8 million Americans enter into such relationships every year . . . and about 50% of the time, the result is either a long-term connection or marriage Combining romance and career: a dangerous mix “What’s Harder: Finding Your Dream Job or Your Dream Mate”

4. Rumors Drain on morale Sensitive issues High emotions Office rumor mill Gossip Problems With Harassment and Employee Dating

5. Understand what is and is not harassment Creative responses to sensitive issues Employers Can Protect Themselves

6. Hostile Work Environment Defining Sexual Harassment

7. Defining Sexual Harassment Frequency of conduct Severity Physically threatening Humiliating or merely offensive Interferes with ability to perform job

8. Defining Sexual Harassment Title VII does not reach genuine but innocuous differences in the ways men and women routinely interact . . .” (Oncale v. Sundown Services Inc.)

9. Defining Sexual Harassment “Prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace.”

10. Employer Liability for Sexual Harassment ? ? ? ? ? ? ? ? Did the employer exercise reasonable care to prevent and correct promptly any sexually harassing behavior? ? ? ? Did the employee unreasonably fail to take advantage of preventive or corrective opportunities? ? ? ? ? ? ? ? ?

11. Was there a consensual relationship? Has alleged harasser ever sexually harassed anyone else? Using Investigation to Establish Precise Nature of Conduct

12. The Conduct Was Not Severe or Pervasive Verbal banter from a soured relationship E-mails Love letters Staring

13. The Employee Unreasonably Failed to Utilize the Employer’s Complaint Procedures Reasonable Care Unreasonable Employee

14. Good Faith Defense Punitive damage can be avoided when employers make good faith efforts to comply with Title VII.

15. Considerations for Good Faith Defense User Friendly Policy Prompt investigation The Company Enforces the Policy

16. Considerations for Good Faith Defense Confronting employees with rumors Love contracts Respond to all dating (customers or other outside sources)

17. The Harassment Was Not Based On Sex Conduct resulted from sexual sparks flying? OR… Conduct resulted from resentment of failed relationship?

18. The Harassment Was Not Based On Sex Not all types of sexual favoritism violate Title VII. It is the Commission’s position that Title VII does not prohibit isolated instances of preferential treatment based upon consensual romantic relationships. An isolated instance of favoritism toward a paramour (or a spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders. (EEOC Policy Guidance on Sexual Favoritism)

19. Sexual Favoritism OR Sexual Harassment? DeCintio v. Westchester County Medical, 807 F.2d 304 (2nd Cir. 1986) Kaminski v. Freight-A-Ranger, Inc., 2002 U.S. Dist. LEXIS 18858 (2002 ND IL) Succar v. Dade County School Board, 229 F.3d 1343 (11TH Cir. 2000)

20. The Harassment Was Not Based On Sex “… [a]s long as men and women work together, the potential for sexual sparks to fly in the workplace will always exist. But after a longtime sexual relationship like this one goes sour, it will be only the unusual case that can escape summary judgment.” Mosher v. Dollar Tree Stores, 240 F.3d 662, 668 (7th Cir. 2001)

21. Include a clear statement that supervisor/subordinate relationships are not allowed If circumstances make it impossible to transfer one of the employees involved in the supervisor/subordinate relationship, appoint an uninvolved supervisor to handle the performance and/or compensation review of the subordinate employee Workplace Romance Policies

22. Workplace Romance Policies • Apply the policy consistently to all employees, i.e., to management and staff alike • Train supervisors about the provisions of the policy and how to constructively deal with workplace romance issues • Draft a policy that is specific to your particular workplace

23. Consider whether any existing relationships should be grandfathered in under the new policy Consider the use of Consensual Relationship Agreements or “Love Contracts” Love Contract Workplace Romance Policies

24. Have employees inform the company should the relationship resume Remind employees of the need to report harassment Responding When the Romantic Relationship Resumes

25. Policies limiting employee dating Risk Risk Risk Clearly defined sexual harassment policy Risk Investigate romantic relationships claims early and thoroughly Risk Take responsive action Reducing The Risk Of Sexual Harassment Suits

26. The conduct was not based on sex. The conduct was not severe or pervasive. The employee unreasonably failed to utilize complaint procedure. Summary Judgment When theSexual Relationship Goes Sour

27. QUESTIONS?

28. North Carolina Association of Municipal Attorneys 2010 Annual Summer Conference August 5-7, 2010 Patricia L. Holland Jackson Lewis LLP 1400 Crescent Green, Suite 215 Cary, North Carolina 27518 919-424-8608 patricia.holland@jacksonlewis.com