Question
We have an employee who likes to flirt with other employees. So far, there hasn’t been anything too suggestive. We don’t want to ruin our laid-back, casual atmosphere, but the flirting is making some employees feel uncomfortable. Is this considered sexual harassment? What should we do?
Answer
The U.S. Equal Employment Opportunity Commission (EEOC), which enforces federal laws prohibiting discrimination and harassment, has stated that, for inappropriate behavior to be illegal, it must be unwelcome or unwanted, as well as severe or pervasive. According to the EEOC, one instance of harassing conduct, such as one instance of a coworker’s flirting or one mean comment, generally is not illegal, unless the conduct is very serious (for example, a physical assault or racial slur). Nonetheless, the EEOC recommends that an employee inform his or her supervisor if the employee believes he or she is being harassed.
That said, flirtatious behavior does not belong in the workplace, and it should be managed by an employer to ensure it does not continue. Aside from making other employees feel uncomfortable, flirting can also develop into behavior that is more serious or even unlawful. All employees should be expected to adhere to a company's policies relative to professionalism in the workplace. If an employee violates such policies by engaging in disruptive behavior (whether flirting, rude comments, or something else), an employer should promptly address such violations in a manner consistent with company policy and practice.
If an employer’s policies do not address unprofessional conduct in the workplace, the employer should consider working with local counsel to develop policies addressing such issues, as well as what the consequences may be for an employee who violates such policies. Employers should also check their state and local laws, as they may impose additional obligations.