In light of the recent spotlight on sexual harassment in the workplace, it is important for employers to think about the somewhat squeamish topic of workplace romance. As long as employees interact with each other during the workday, there is always a chance that romantic relationships may develop. This issue presents an interesting balancing act between respecting the privacy of employees and protecting an employer from legal liability.
At the forefront of any policy is the risk that a souring relationship could lead to a lawsuit. For example, a tumultuous relationship between co-workers could lead to claims of sexual harassment, hostile work environment, or retaliation, and practically speaking, can distract from the day-to-day operations of the workforce. Employers can be put in the unenviable position of needing to interject into the private lives of their employees while trying to manage the business. The problem is even more severe when the relationship is between a supervisor and a subordinate employee. In this regard, having a policy or plan in place can establish clear expectations and protect against liability. There are several options an employer should consider:
Reliance on Sexual Harassment Policy
One option is to rely on a workplace harassment policy, or related policies. Even small companies without a formal dating policy generally have—or should have—a sexual harassment policy. It may be enough to remind employees in a relationship of the specifics of such a policy. This route may be effective in smaller companies with a limited number of employees, but the employer should still weigh the potential risk of not providing definite expectations versus the ability to police and enforce a policy.
The “love contract” option is a way to allow relationships with disclosure. This is a signed document that confirms a consensual relationship and provides notice of understanding of sexual harassment policies and procedures. The contract can also outline expectations regarding behaviors, including a ban on displays of affection in the workplace. A subordinate employee’s refusal to sign the contract may also raise red flags that the relationship with the supervisor is not as consensual as it appears. While there are some positives for these types of contracts, they can seem intrusive and may alienate employees. Moreover, enforcement may be an issue as employees may just begin a relationship without informing the employer, and the employer may be disinclined to punish employees for dating. Finally, it may not be the best use of resources to investigate the dating activities of employees.
Ban on Workplace Relationships
Another option is to develop an anti-fraternization policy. This option may be tempting in its simplicity, but it has significant practical issues. For example, it’s extremely difficult to define and describe the prohibited conduct—will “casual dating,” “relationships,” “romantic relationships,” or “socializing” be prohibited? In addition to the problem of defining the prohibited behavior, enforcing such a policy is likely a logistical nightmare. Finally, such a policy may cause qualified employees to quit or seek employment elsewhere.
Prohibit Supervisor/Supervisee Relationships
A more balanced policy that is a bit more palatable for employees is to prohibit supervisors from dating employees who are in their direct line of authority. If such a relationship develops, an employer should consider requiring that the person with the most authority move to a different, lateral position, or terminate the supervisor. This policy can alleviate the fear of job loss from the subordinate who could become a victim of sexual harassment if the relationship with the supervisor fails. This type of policy can also protect against allegations of favoritism or the creation of a hostile work environment and can be implemented in conjunction with other options.
Moreover, such a prohibition is even more important with regards to executives and similar members of upper level management. Because these individuals likely have the authority to take tangible employment actions (such as hiring, firing, promoting, reassigning, or changing benefits) against employees, their actions can be imputed to the company itself. A complete ban on executives dating employees, and the threat of significant consequences on those that do, should be strongly considered as one individual could render the entire company liable.
Work with an Experienced Employment Attorney
Regardless of the specific policy in place, employers must always take any allegation of sexual harassment or misconduct seriously and investigate. Workplace relationships may create a greater risk of such allegations, but regardless of the circumstances, doing nothing should not be an option. Employers should be proactive in implementing systems and procedures to avoid liability.
Employers would be wise to contact an attorney to discuss the need for a workplace dating policy and how to effectively manage employees to promote the business while limiting liability. The attorneys at Mallery & Zimmerman are experienced in helping businesses develop policies and procedures to limit their exposure to liability and avoid costly lawsuits. If a situation has already developed, you should contact an attorney as soon as possible. Finally, another service we offer is training for supervisors and executives on how to deal with these issues and avoid liability.