How Getting Personal at Work Can Lead to Legal Woes for Employers

IN THE TRENCHES

By Rebecca Gardyn

Making sure that a nonprofit organization has systems in place to maintain personal boundaries between

co-workers not only helps to create a professional atmosphere, but also protects an employer from potential legal headaches. Some of the most common legal hazards that can occur when co-workers are permitted to cross the borderline include:

Invasion of privacy. When the Health Insurance Portability and Accountability Act of 1996, commonly known as Hipaa, which governs the use of personal medical information, went into effect last April, employers entered a new era, which requires them to be more discreet about what they know about their workers’ personal lives. In addition, virtually every state has privacy laws that could apply to employers who disclose private information about their workers, says Jonathan Segal, a lawyer in Philadelphia who specializes in employment issues and works with nonprofit clients. “If a supervisor knows about an employee’s medical issues or other personal problems, the employee can argue that a supervisor has discriminated against him or her on account of them,” says Mr. Segal. “Sometimes, it’s better not to know what you lawfully cannot consider.”

Beyond an employer’s responsibility to maintain discretion lies the responsibility of individual co-workers, says Lori Rosen, a lawyer and analyst at CCH, a human-resources consulting company in Riverwoods, Ill., that works with nonprofit clients. When in doubt whether personal information is too personal for the office, she says, don’t ask and don’t tell. “There should be some thought put into what you disclose in order to maintain that edge of a work environment, as opposed to a purely social environment,” she says. “It’s the old one about, ‘Would you want to see what you just said on the front page of The New York Times?’ If the answer is no, then it probably doesn’t belong in the workplace either.”

Although she advises avoiding asking co-workers about their ages, marital status, children, earnings, or health so that an organization won’t be at risk of discrimination claims, she acknowledges that it is hard to follow this advice in a real-life setting. “What is your purpose in asking that question? What do you intend to do with the information? If your only purpose is because someone’s been out for a while and you ask, ‘How’re you feeling?,” there’s nothing wrong with that,” she says. “But it’s always keeping in mind that which makes the atmosphere a workplace as opposed to a social gathering.”

Favoritism. “Favoritism isn’t unlawful per se,” says Mr. Segal. “However, if a supervisor shows favoritism toward a colleague or employee that appears to run along discriminatory lines, that’s a problem. If you favor your friends, and your friends are all the same gender, race, etc., those who are different in terms of gender, race, etc., may feel discriminated against.”

Managers should pay attention to their socializing patterns at work, says Ms. Rosen. Try not, for instance, to always lunch with the same colleagues. “Appearances are very strong,” she says. “Err on the side of being overinclusive with other people.”

Sexual harassment. While it is common for workmates to date, Ms. Rosen points out that it is also risky — not just because it holds the potential for sexual-harassment suits, but because it can disrupt peace in the office. “There are so few times when a dating relationship ends well, or doesn’t end,” she says.

Mr. Segal goes so far as to call office romances — especially between supervisors and subordinates — lawsuits waiting to happen. “If the relationship falls apart, the subordinate may claim that the supervisor pressured him or her into the relationship and/or that the supervisor retaliated against him or her for ending the relationship,” he says.

Although it can be difficult to regulate co-workers’ love lives, Mr. Segal says that employers can try one of three approaches: prohibit dating between supervisors and subordinates; require supervisors to inform human resources or another senior manager if they begin to date a subordinate, so that potential conflicts of interest can be handled; or simply discourage supervisors and subordinates from dating each other but stop short of a formal prohibition.

Ms. Rosen says that prohibitions on employee dating (or on spouses working in the same department) should be undertaken only by organizations that have a specific, professional purpose for making such rules — such as a concern that partnered employees will be tempted to share sensitive work-related information with each other. Beyond that, she says, all employers should require workers who are rejected when approaching colleagues for dates to take no for an answer, and to reiterate this rule to all new employees. “One of the quick ways to a sexual-harassment complaint,” she says, “is to continue to ask someone out who has already expressed disinterest in going out with you.”

Nonprofit employers (and employees) who want to learn more about their rights and responsibilities under current labor laws can contact the federal Equal Employment Opportunity Commission and the Department of Labor. For information on Hipaa and other privacy laws, contact the Office for Civil Rights at the U.S. Department of Health and Human Services. Information on state labor laws can be obtained via the Legal Information Institute at Cornell University.