"Given that the majority of workers date or want to date other employees within the company, employers ought to give due considerations to the risks of such conduct, as well as what policies, if any, should be implemented to deal with these visits by Mr. Cupid. "
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Where Love Abounds:
Dealing With Workplace Romance
By Christopher W. Olmsted
As Valentines Day approaches, some of your employees are getting into a romantic mood—perhaps with their co-workers. Your killjoy lawyer asks a question: Should an employer be concerned about workplace romances?
Workplace romances are quite common. According to a 2003 survey conducted by Vault.com, 47% of workers have participated in an office romance. Others are left hoping. The survey revealed that an additional 19% would be willing to do so if the opportunity arose.
Workplace romance is not necessarily a bad thing. But a prudent employer needs a strategy. Given that the majority of workers date or want to date other employees within the company, employers ought to give due consideration to the risks of such conduct, as well as what policies, if any, should be implemented to deal with these visits by Mr. Cupid.
The Risks
State and federal anti-harassment laws require employers to take all reasonable steps to prevent unlawful harassment. Certainly there is nothing illegal about consensual workplace romances. But when a personal relationship spins out of control, legal claims—meritorious or frivolous—can ensue.
For example, the toxic waste of a relationship gone bad can spill into the workplace. After a breakup, one partner may decide to reconcile, while the other wants nothing of the sort. Romantic overtures, previously welcomed, may now be viewed as bothersome harassment based on sex. Worse, a bitter former partner may try to get back at the other by retaliating in the workplace, particularly where there is a supervisor-subordinate relationship. And certainly one common varietal of sour grapes is the false accusation of harassment.
In one study, conducted by SHRM in 1998, it was found that about 24% of workplace romances lead to a sexual harassment claim.
Particularly troublesome is a relationship between a supervisor and subordinate employee. If the romance goes south and the supervisor is accused of sexual harassment, the company may be held strictly liable for the supervisor’s conduct.
But failed relationships are not a prerequisite to legal problems. For example, public displays of affection, could, in extreme cases, cause other workers to complain about working in a sexually charged environment.
Favoritism arising out of personal relationships is another risk. For example in the 2005 case Miller v. California Department of Corrections, the California Supreme Court held that widespread sexual favoritism in the workplace may give rise to a hostile environment in violation of California’s anti-harassment law. In Miller, a supervisor had multiple consensual sexual affairs with a number of female employees. The outsiders--female correctional officers who did not have a relationship with the supervisor--alleged they were “forced to work in a hostile work environment where women got ahead and were promoted if they performed sexual favors” for the supervisor. The Court held that sexual favoritism that is severe or pervasive and creates an abusive working environment may be actionable harassment, even if the person suing was not the victim of the sexual conduct.
Beyond the legal risks, workplace romances can create a variety of problems relating to productivity, ethics, and morale.
Policies Addressing Workplace Romances
Non-Fraternization Policies.
One option is to completely prohibit romantic relationships among employees. However, from a legal and practical standpoint such a rule is dicey.
From a legal standpoint, some may argue that such a rule could impinge upon the workers’ constitutional right to privacy. The California Labor Code also restricts an employer from controlling off-duty activities. The issue has not been tested in our appellate courts.
From a practical standpoint, monitoring compliance with the policy may make the HR department feel like chaperones at a high school prom.
Conflict of Interest Policies.
Another option is to include office romances as part of a conflict of interest policy. For example, the policy may prohibit supervisor-subordinate relationships, be they romantic, familial, or the like. Employees can be reassigned so that they no longer report to each other.
Informed Consent Policies.
A third option is to permit such relationships, but ensure that both parties are aware of and comply with the company’s sexual harassment policies.
Some companies ask the partners to acknowledge in writing that the relationship is consensual. Sometimes the agreement is called a “love contract.” The two employees acknowledge the company’s harassment prevention policy. They may be asked to submit any disputes to binding arbitration.
Such contracts have limits. The employees do not waive the right to sue for sexual harassment. The company cannot simply ignore complaints once the employees sign the contract; it still has an affirmative obligation to eliminate workplace harassment. The company might still be found liable if something goes wrong. The written acknowledgments should be created with the assistance of legal counsel.
No Policy.
By default, most companies have no policy at all. However, like the proverbial ostrich with its head in the sand, this approach merely ignores the risks instead of managing them.
So as the bouquets of roses, cards and chocolates appear on your workers desks this month, get legal advice and take appropriate precautions well ahead of trouble.
Practical Tips:
Got Policy? At a minimum, you need a written sexual harassment policy. Beyond that, consider implementing a policy addressing workplace romance.
Demand Disclosure. Require employees in a supervisor/subordinate relationship to disclose the relationship to management. You will also need a policy concerning the company’s response to this disclosure.
On The Low Down. The romantic parties may or may not want others to know about their relationship. Company management should keep mum.
Consistency. An evenhanded application of policy will reduce the risk of discrimination claims. For example, are heterosexual couples treated the same way as homosexual couples? Married vs. unmarried?
Training. Train all supervisors on your policies (sexual harassment prevention training is required in California for employers of 50 or more employees). Address non-supervisors as well, so they know what to do about unwanted conduct.
Download entire February 2011 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2011 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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