More than harmless fun: How Valentine’s Day can blur the line between celebration and harassment

While seen as a cultural tradition, the day opens up possibilities that blur the line between appropriate and inappropriate, representing a microcosm of something much darker.

In a recent episode of The Lawyers Weekly Show, Michael Byrnes, workplace relations partner at Swaab, highlighted how workplace policies or legal obligations can pale in comparison to the potential scope of romantic celebration, presenting a path for sexual harassment and providing a built-in excuse.

For Byrnes, the establishment of rules around Valentine’s Day conduct in the United States and the resulting backlash drew his attention. “There were critics of that,” he said, adding that “some said it’s political correctness gone mad, nanny state stuff”.

However, with inappropriate advances and behaviours still occurring in Australian workplaces, and many offenders claiming not to understand what does and doesn’t constitute it, updated guidelines are more relevant than ever.

Byrnes highlighted that some workplace conduct still sits, for many, in a grey area of appropriateness, stating: ”Those things don’t need to be necessarily aggressive or abusive or physical. They can still be comments or invitations for dates that constitute as sexual harassment.”

While some may be genuinely unaware of the boundaries these actions can cross, there is the potential for behaviours to be excused as ignorance. As with accusations of this nature, determining the truth is part of the difficulty.

However, since the Me Too movement that gained momentum in 2017 after The New York Times published its first major investigation into sexual misconduct, awareness and policy have developed, spurring the creation of firmer policies and penalties.

In 2020, the Australian Human Rights Commission published its Respect@Work report with 55 recommendations targeting workplace sexual harassment. Findings included the shocking statistic that one in three Australians experienced sexual harassment in the workplace in the five years leading up to 2018.

Byrnes explained that employers now have a duty to “take reasonable and proportionate steps to eliminate conduct, including sexual harassment or hostile work environments on the basis of sex in the workplace”.

Byrnes also raised the point that, while most, if not all, sexual workplace policies do not currently make specific reference to Valentine’s Day, it may make sense from a legal standpoint. It is possible, he said, for a scenario where a Valentine’s Day-motivated behaviour occurs, and a judge examines “the language of these policies very closely, sometimes in a rather abstract way, technical way, rather than a practical way” and identifies a weakness in policy.

He said: “I could imagine a situation like that arising. I don’t think it’s entirely far-fetched.”

As such, potential punishments could be reduced if this gap is identified.

Byrnes highlighted that specific policy is also for the employer’s sake, as it “may help in arguing that the employer has taken reasonable and proportionate steps to eliminate sexual harassment in the workplace”.

He warned that, while “this might be very unfortunate and a sad reflection of modern times”, it may not be prudent to have workplace Valentine’s celebrations “unless they’re relatively innocuous or benign”.

“A workplace encouraging staff to send little gifts to each other, romantic messages and the like, that certainly isn’t something that should occur in the modern environment, having regard to sexual discrimination,” he said.

He added that “one of the reforms in recent years is the prohibition of a hostile work environment on the grounds of sex”, but obligations also include taking precautions against “an environment that is humiliating, intimidating, or offensive”.

In reference to potential arguments for free will and interference in personal lives, Byrnes said: “It’s not the sort of environment that some people want. A bit of a free-for-all with very few rules applying just doesn’t align or accord with the modern-day legislative environment.”

In 2020, the AHRC national inquiry drove a shift away from complaint-based policy to proactive prevention and mandatory reporting. As part of this approach, Byrnes recommended avoiding the potential for fraught situations and staying on top of your workplace culture, whether this includes adjusting policy, addressing guidelines in training, or simply keeping an eye on things.

And when it comes to risque gifts and cards, Byrnes purports “that is something to observe and to stamp out, because that is where things can go very wrong”.

He said: “A joke can go very wrong in this sort of area.”

By its nature, Valentine’s Day encourages declarations of feelings and expressions of love, but for some, its potential may lead them to toe the line of appropriateness. However, strong policy, actively engaged employers, and knowledgeable employees will mitigate the risk of issues in the workplace.