behavior at work, that would also mean
stamping out dating.
The second concern is that
beliefs about what constitutes sexual
harassment vary and are typically
quite different from the definition in
the law. According to the Wall Street
Journal, an EEOC study concluded that
about a quarter of women reported
experiencing sexual harassment when
they were given a standard definition
of it, while about half said they
experienced it when they were allowed
to define it themselves.
The popular definition of sexual
harassment today, reflected in recent
surveys reported by the WSJ, is
sexually oriented attention that the
respondent does not want, a standard
much broader than the legal definition.
A recent survey by YouGov found
that views on what counts as sexual
harassment varied considerably, not
just among men and women but also
Republicans and Democrats of the
same sex and age. Younger men and
women believe sexual harassment
is more widespread than their older
counterparts; a quarter of young
women, for example, say that being
asked out for a drink by a co-worker is
According to the Society for Human
Resource Management, about 40
percent of employers have policies
restricting dating, most commonly
prohibiting supervisors from dating
their direct reports—about one in 10 of
those policies prohibit dating altogether.
Another way to look at this is that 60
percent of employers have no rules on
dating. The Harris survey noted above
found that about a quarter of those
who had dated in the workplace were
romantic with a subordinate, where
power imbalances can easily lead to
sexual-harassment charges, especially if
the relationship goes south.
Dating subordinates is so
fraught with negative outcomes,
from perceptions of bias by peers to
coercion, that prohibiting it is a good
start in any policy. The most unusual
practice for dealing with office dating
is a “love contract,” a legal statement
between the two people involved in an
office relationship that the relationship
was consensual and that neither will
hold the employer liable for complaints
they may have about the person they
Should companies go further
than ruling out dating subordinates?
In practice, that means easing the
“pervasive and severe” standard from
the legal definition of harassment while
leaving the first two components—that
the behavior has to be sexually related
and a reasonable person would see it as
The variation in views as to
what constitutes sexual harassment
means that leaders have to begin by
recognizing that no standard is going
to make everyone happy. Also, the
broader the standard, the more difficult
it is to enforce because more judgments
are involved and the appropriate
redress becomes more difficult.
Whatever the standard is, conveying
it raises the issue of training, which
helps people understand what is
prohibited and what to do if they think
a policy is being violated. Sophisticated
programs to get at the heart of the
behavior can also help employees
improve their interpersonal skills,
especially emotional intelligence.
At companies that allow dating, for
example, life would be much easier if
employees understood when they are
making others uncomfortable—such
as repeatedly asking someone out on
a date who has already said no—as
well as how they should deal with
behavior that begins to make them
uncomfortable. Yes, we are all supposed
to be adults here, but the plain fact is
many people do not have these skills.
Enforcing that Standard
Once there are rules developed
and employees understand them,
HR has to enforce them. The good
news is that frameworks for dealing
with bad employee behavior already
exist, and HR has been using them for
generations. The premise behind these
practices is that fairness is important.
A lot of damage is certainly done by
sexual misconduct, but damage is also
incurred if innocent people are accused
and punished. Thankfully, these two
concerns do not have to be in conflict.
Good practice starts with
establishing the facts about complaints.
Employees are rarely clear-eyed about
how they see their own behavior,
especially as it relates to others.
To illustrate, the EEOC reports
that only about 6 percent of sexual-harassment claims brought to it meet
the test of “reasonable cause,” or
rather its judgment that harassment
occurred—and roughly a quarter of all
those claims eventually end up being
negotiated or resolved in some way.
That does not mean that bad behavior
didn’t happen, only that the law wasn’t
violated. But it does suggest that those
does it have to be the standard of civil
liability described earlier, as that would
require that the employer wait until
it was legally liable to act. A tougher
but common standard for discipline
here, and in all cases of misbehavior,
is determining whether the accused
acted needlessly and contrary to the
best interests of the employer.
What Happens Then?
If the group decides that improper
conduct occurred, what should the
consequences be? Here, things do
begin to look more like the legal world.
A minimal goal is to ensure that the
improper conduct doesn’t happen again.
If the misconduct was severe and reflects
willful disregard of the employer’s rules
and of co-workers’ legitimate interests,
the accused will usually be fired. If the
bad conduct was milder and isolated, and
if the accused cooperated and expressed
regret, a lesser form of discipline, such
as a written or oral warning, may suffice.
Given that the best predictor of future
behavior is past behavior, the work
history of the accused matters as well:
Someone with a clean record over a
long period of time should certainly be
treated differently than someone with a
pattern of poor behavior.
The enforcement step is what the
workforce and outsiders will see, so
here company leaders engage issues
that are not present in the legal system.
For example, they may decide that it
is necessary—for the company culture
or to change impressions about the
organization—to take a tough and
public stand on penalties, where they
might not have done so at a different
moment in time. This is also where the
company may find its hands tied by its
own pronouncements. “Zero-tolerance”
policies without definitions may cause
the company to feel that it now has to
fire people for even minor offenses or
risk appearing hypocritical. In states
like California, where employees
have more protections against
unfair dismissals, it is important for
employers to be consistent and avoid
sharp changes in disciplinary practices.
No doubt, most did not think they
would be drafting rules for dating when
they set out for a career in business,
and many are frustrated at rules and
processes that seem to turn their
workplace into The People’s Court.
But there are reasons why policies
and practices like the ones above have
been developed—they may be the
only way to protect employees from
bad behavior without creating more
problems in the process.
Peter Cappelli is the George W.
Taylor Professor of Management at the
Wharton School, and Dan O’Meara is
a partner at Ogletree Deakins. They co-host the radio show In the Workplace on
SiriusXM Channel 111.
Send questions or comments about
this story to firstname.lastname@example.org.
bringing complaints are not always
good judges of how their situation
relates to policies.
When there is a complaint, HR
needs to conduct an investigation
to figure out the facts. A reasonable
definition of a “zero-tolerance” policy
is to make it clear that every complaint
will be taken seriously to establish the
facts. To make an obvious point, the
person against whom the complaint
is made should not be involved in this
process, even if he or she is a senior
employee. However, he or she should
certainly be interviewed. HR leaders
may feel inclined to shield the person
complaining from retaliation by the
alleged harasser, but it is simply not
possible in an investigation, nor fair
for the accused, not to know who is
bringing the complaint.
If the person being accused is a
leader in the organization, it often makes
sense to bring in an outside expert to
conduct the investigation and to give the
investigator freedom to do the job right.
Just as important is letting people know
the investigation is independent. This is
an expensive process, but getting things
wrong at such a point is even more
costly, as we see from companies in the
An investigation is like police work:
gathering and reviewing documents
such as emails, interviewing witnesses
and perhaps getting written statements.
Employees don’t have Fifth Amendment
developed and employees
rights not to self-incriminate in the
workplace—they are required to
cooperate and can be fired if they refuse.
Once witnesses have been
interviewed, those involved should
decide credibility and resolve
conflicting accounts. The goal
here is to be fair but also to move
quickly. This is best done by a small
group of managers who are not
other wise involved in the allegations
or investigation. Yes, that sounds
like a jury, but this process does
not other wise have to look like a
courtroom. The standard of proof is
certainly not the criminal standard—
beyond a reasonable doubt—nor
Once there are rules
understand them, HR has
to enforce them.