Hey baby, do you come here often?

By Andrew Scott-Howman, Partner | Wednesday 6 July 2005

Gap clothing is one of the most successful apparel chains in North America (and, for that matter, almost any other part of the world).

One of the reasons for Gap's success in the highly competitive North American market is its approach to customers. Every employee is indoctrinated in the "Gap way" – which is captured in something called GAPACT (representing the initials of the six essentials of selling Gap clothing).

The first of those six essentials is Greeting. If you go into any Gap store, an employee should speak to you within the first 30 seconds of your entrance.

The reason for this? Studies have shown that people who are given a friendly greeting respond better – and tend to purchase more.

Perhaps unsurprisingly, the effect is increased if the person giving the greeting is generally young and attractive. In other words, we shop better when people flirt with us – and tell us how good looking we can be in their store's clothing.

So, in essence, it is good business for Gap employees to flirt with their customers. But should employees flirt with each other while they are at work?

Interestingly, this is an issue which was recently tested in the German Courts. Wal Mart (an American supermarket with stores in Germany) issued a policy for its employees that prevented them from engaging in "any kind of communication that could be interpreted as sexual". Employees were required to report violations through an "ethics hotline".

Evidently, the company took the view that it was bad business for its employees to flirt with each other. The Court disagreed. It said that it was not open to the company to prevent this sort of thing – meaning that flirting at work could not be outlawed.

But is flirting legal under New Zealand law?

The Employment Relations Act prohibits "sexual harassment". That term is given a wide definition which encompasses almost any interaction or contact – and any form of preferential treatment.

In short, if you think your boss is making sexual overtures to you in a way which is unwelcome – and which has a detrimental effect on your employment – you can complain that you have been sexually harassed. Such an allegation is a very serious matter. The law provides that an employer is obliged to investigate any such allegation – and, further, that its investigation has to be detailed (so that it is more than just a casual interview with the complainant and respondent).

Practically, allegations of harassment almost always end either in a need for an employer to take some form of action (against either or both harasser and harassee) – or in a decision by one or other party to resign from work.

So, harassment can have serious consequences. But statistics tell us that about one third of us meet our life partner while at work. And the law does not prevent an employee from socialising appropriately with workmates – which may include flirting. So, consistent with the ruling of the German Court, New Zealand law does not outlaw flirting (and a policy prohibiting it would probably also be subject to criticism by a New Zealand Court).

All this means – flirting is OK, harassment is not.

Experience suggests that the real problems for the employer arise when the flirting goes wrong.

For example, if one employee incorrectly thinks that a message is being sent that a personal relationship would be welcomed and, for example, attempts to kiss a co worker at a social function.

In this case, the "harassed" employee can allege that he or she felt compromised – and that a normal working relationship with the "harasser" can never again occur. The harasser can, in response, argue that no inappropriate conduct was intended – and there is considerable regret that a sincere act of affection was taken the wrong way.

The employer must investigate (by interviewing both parties) and then make a decision about what action to take. And in this situation, whatever action is taken will almost certainly upset one or other employee.

The moral of this story? It's okay to flirt at work – but be careful that you haven't got your wires crossed. Getting the wrong message can lead to a disastrous outcome – both for your employer, and for you.