In Roman mythology, Cupid is the god of love, son of Venus. But one look at that cherubic boy holding a bow and arrow should alert you that he may be bringing more trouble than love to the workplace. So can you or should you keep romance out of the workplace? How can you address legitimate liability concerns without invading employees' privacy? And what should you do to protect yourself so Cupid does not wreak havoc in the workplace?
Workplace romance is nothing new. Indeed, workplace relationships can be positive and fulfilling for those involved, and many people have fallen in love in the workplace and sustained lasting relationships. But there are potential downsides. Continuing development of federal and state employment laws coupled with the trend toward longer hours on the job can make the workplace a breeding ground (no pun intended) for claims of unlawful harassment, discrimination, favoritism, retaliation and conflicts of interest.
The problem with workplace romance is you can do little to prevent it because no rules or policies can stop emotions. Yet recent court decisions plainly place greater responsibility on employers to prevent the often negative effects of workplace romances. Such relationships not only have practical implications for workplace morale, productivity and perceptions of fairness but also have potential legal consequences. You should take steps to address workplace romances well in advance.
What are the risks?
Although each work environment and culture has unique circumstances that can give rise to a wide array of potential liabilities, there are some basic points you should consider when addressing workplace romances. The first step is identifying and understanding the fundamental risks associated with workplace romances.
Sexual harassment
One potential area of liability is sexual harassment. On its face, there is nothing inappropriate about two consenting adults having a relationship in the workplace. However, problems arise when something goes awry with the relationship or one party sees the relationship as an opportunity to take advantage of the other, which can lead to sexual-harassment charges.
You need to pay particular attention to workplace romances involving an employee and supervisor (or someone with apparent supervisory authority). One common form of harassment arises when a supervisor either offers a job benefit that is tied to harassment to the employee (usually a solicitation for sexual acts or favors) or threatens a negative employment action against the employee if he or she does not go along with the harassment. This would include promotions, wage increases, time off, easier job duties, demotions, termination, withdrawal of benefits, etc. As an employer, you are strictly liable for this type of harassment, meaning the only defense is prevention.
For instance, if your receptionist dates a project manager but the relationship turns sour because the project manager is pushing too hard for sexual favors and insinuates resistance will result in lost opportunities for advancement within the company, you face strict liability if the receptionist brings a harassment claim. This is true even if the receptionist initially consented to the relationship but subsequently changed his or her mind or rejected more intrusive conduct.
The same liabilities lurk when a relationship does not involve a manager or supervisor but an outside third party, such as a key customer, because a harasser can be an individual with apparent supervisory authority. A third-party individual in a position carrying such apparent authority may lead a subordinate to believe he or she has no ability to report misconduct or harassment or, worse yet, to say "no." Accordingly, you need to be mindful the potential liability for harassment extends well beyond the workplace.
Because of strict liability, the only way to prevent these types of claims is for you to communicate company policies prohibiting harassment not only to supervisors but also to outside third parties in key relationships with the company or who have substantial contact with your employees.
Hostile work environment
Harassment claims may arise even if no negative job action is taken or threatened in a workplace relationship. Harassment also may occur between two equal co-workers involved in a relationship when one employee engages or participates in offensive, demeaning or unwelcome conduct that is so severe or pervasive it interferes with the other co-worker's ability to work or creates an intimidating, offensive or hostile work environment.
For example, a hostile work environment could arise if two employees go on a date and, following that date, one employee continues to pressure or even begins stalking the other to continue the relationship to the point the repeated solicitations become unwelcome and begin to interfere with the co-worker's ability to perform the job.
You could be on the hook for a hostile work environment claim in such a case, especially if dating among co-workers is common and an employee feels compelled to participate in or accept such an environment. You may be held liable for this type of harassment if you knew or should have known about the harassment (which may be as simple as unwittingly observing or hearing a supervisor's repeated, unwelcome solicitations directed at the co-worker) and did not take appropriate steps to prevent or stop it.
A claim of hostile work environment can be asserted when a supervisor or third party engages in similar unwelcome conduct, but the responsibility on you is greater because of a supervisor's authority. In such instances, you cannot escape liability unless you took reasonable care to prevent and promptly correct the harassing conduct and the employee unreasonably failed to take advantage of the company's harassment policy to address the unwelcome conduct.
Another emerging area of liability is the potential hostile work environment created by the effects of job-related favoritism a supervisor shows to subordinate employees in exchange for consensual romantic relationships. In other words, hostile work environment claims may encompass those claims brought by employees who may not have been harassed per se by a co-worker or supervisor but felt harassed because of the favoritism displayed by the supervisor to subordinates who were willing to participate in relationships to "get ahead."
In 2005, the California Supreme Court ruled an employer could be found liable for claims of sexual favoritism. The plaintiffs in the case were two former correctional officers who filed claims for unlawful sexual harassment because the chief deputy warden had sexual affairs with three other employees, each of whom received promotions or unique privileges and benefits as a result of their relations with the chief deputy warden. In contrast, the plaintiffs claimed they were denied promotions, ostracized at work and given onerous responsibilities.
The court emphasized the favoritism was widespread and had created an atmosphere demeaning to women because the women who worked for the prison believed one of the keys to advancement was sexual conduct. Although the issue raised before the California Supreme Court has not been addressed specifically by most jurisdictions, the decision may mark the beginning of a shift in policy among courts in other jurisdictions to expand the protections of sexual-harassment laws.
Conflicts of interest
You should note other areas of potential liability, such as conflicts of interest. All employers are subject to scrutiny, from within and outside the company, in terms of conflicts of interest that may arise as a result of workplace relationships. You need to be particularly guarded when a relationship involves an employee and outside third party to ensure projects, purchase agreements and other work are not being steered or funneled inappropriately based on the romantic relationship, resulting in actual (or perceived) conflicts of interest and potential legal liabilities from individuals who feel mistreated based on the conflict.
Once you recognize and understand these potential liabilities, take stock of your company and decide to what extent you will allow workplace romances and what actions you will take to limit or stop them. Many employers tolerate all consensual romantic relationships among co-workers, but the potential claims of harassment, favoritism and conflicts of interest require employers to re-assess their policies regarding intracompany dating and ensure the policies are designed to address potential issues long before they arise.
Protect yourself
Fortunately, you have options when it comes to minimizing the risks and fallout associated with workplace romances. Some are designed to provide the most protection for the employer, and others try to take into consideration employees' privacy and right to engage in otherwise lawful, off-duty conduct. Carefully examine your work environment and needs when assessing each option, particularly because of the fine distinction between enforcing work-conduct rules and individuals' moral or ethical values.
Sexual-harassment policy
Recognizing dangers of workplace harassment arise from workplace romances, take reasonable steps to prevent harassment by implementing and strictly enforcing a policy prohibiting all forms of harassment. At a minimum, develop a policy that:
You should communicate your policy to all employees and require periodic training to advise employees about their respective rights and responsibilities. You also may consider requiring employees (especially those in supervisory-subordinate relationships) to report all workplace romances and remind consenting parties the policy is in effect at all times—even between consenting employees.
Although such a policy cannot protect you when a supervisor who is dating a subordinate demotes the employee because he or she won't agree to the supervisor's sexual demands, it may provide an affirmative defense to claims of a hostile environment if uniformly enforced because it will establish you exercised reasonable care to prevent and promptly correct any sexual-harassment behavior.
Anti-fraternization policy
Many employers have implemented workplace dating policies—from hard-line bans applicable to all employees to more lenient policies that simply discourage workplace relationships. What should you consider when developing an anti-fraternization policy? An absolute ban arguably ignores the realities of the workplace, but allowing workplace romance to run rampant likely will lead to litigation. The final decision involves the allocation of risk and how you believe it should be spread.
To reach that middle ground, consider upfront what relationships you will ban and why. In doing so, recognize supervisor-subordinate relationships carry the most legal risks. This is why many employers with anti-fraternization policies absolutely prohibit supervisor-subordinate relationships accompanied by severe consequences for noncompliance.
A policy may allow consensual supervisor-subordinate relationships but require supervisors to report such relationships to the human-resources manager. A supervisor's disclosure of a relationship with a subordinate (or other notice to the employer) should trigger a change in the reporting structure to reduce the risk of strict liability if the relationship sours.
As with any workplace policy, you should specify and uniformly impose a penalty in the event a supervisor fails to report a relationship. For instance, if your vice president violates the policy, will he or she be subject to the same corrective action as a front-line supervisor who violates the policy, or will you create an exception? Exceptions invariably will give rise to claims of unfair or unlawful disparate treatment and simply make you look bad to employees.
Given some of the more recent court decisions addressing workplace romance liabilities, you should publish clear guidelines and limitations for employees to follow if you develop an anti-fraternization policy. In doing so, consider, at a minimum:
The guidelines also should state employees involved in workplace relationships are free to end the relationships at any time without fear of adverse employment actions or retaliation and include a specific reference to the reporting procedures of the prohibited harassment policy.
Finally, all restrictions and limitations should be applied according to applicable state and local laws. For instance, many states have laws that prohibit discrimination on the basis of marital status, so any policies should be applied without inadvertently resulting in disparate treatment of co-workers who are married.
Consensual-relationship policy
Regardless of whether you adopt an anti-fraternization policy, you may wish to consider requiring those involved in a workplace romance to sign a consensual-relationship agreement, or love contract. These agreements require both parties to acknowledge the relationship is consensual; the relationship has nothing to do with the company or either party's employment; both parties are free to end the relationship at any time without fear of adverse employment actions or retaliation; and both parties understand the company's harassment policy.
But such agreements may not be appropriate or desired in all circumstances, and you will have to determine when and whether they should be used. For instance, it may not be practical or desirable to approach two co-workers involved in a consensual relationship because of the potential for backlash from the employees and reduced morale from perceptions you inappropriately assume a "Big Brother" role in a private matter. However, the agreements may be a prudent consideration when the disparity of power between the parties is significant because of the potential for greater liability. Yet even these types of agreements will not prevent a harassment claim if the relationship sours and formerly welcome behavior becomes objectionable.
Conflicts of interest policy
You also should consider adopting or expanding your conflicts of interest policy to incorporate a ban on conflicts that may arise or be perceived as a result of a workplace romance, particularly those involving an employee and outside third party who conducts business with your company. Such a policy clearly should explain an actual or potential conflict of interest occurs when an employee, because of the workplace romance, is in a position to influence a decision that may result in a personal gain for that employee or the romantic partner. The policy also should address the following:
A conflicts of interest policy may be essential if the employee involved in a workplace romance has access to plans; drawings; customer lists; pricing lists; or other confidential, proprietary information. If you maintain a policy regarding business ethics, it should be referenced in the conflicts of interest policy.
Electronic communication
Workplace romances usually do not last forever. But e-mail communications do, and they can come back to haunt you long after an employee has hit the delete key. E-mails particularly are problematic with workplace romances because they often are used by parties in a romantic relationship to communicate private, explicit messages that do not belong in the workplace. Even if the e-mail messages jokingly refer to sexual acts in exchange for workplace favors, they objectively may constitute harassing conduct.
For instance, a subordinate who receives an e-mail from a supervisor he or she is dating that jokingly states, "I better have a good time tonight; otherwise, guess who's not getting a good review next Monday," may not consider the e-mail to constitute harassment at the time. But if the relationship sours, the subordinate later may use the e-mail as evidence of harassment.
Accordingly, employers who provide employee access to electronic communication tools, such as the Internet and e-mail, should develop and strictly enforce an electronic communication policy placing limitations on personal usage and clearly prohibiting inappropriate use, such as the transmission of explicit messages or any other content that may be interpreted as harassment (whether based on sex or any other protected status).
Although this may appear to be common sense, employees experience surprising lapses in judgment when using the office e-mail system often because of the misleading sense of privacy in receiving and sending e-mails. An electronic communication policy also should prohibit e-mail and Internet communications that are disruptive, threatening, derogatory, harassing or discriminatory and state the company will have unrestricted access to information stored in its computer systems.
What approach is best?
There is no easy answer to what measures you should adopt to prevent and minimize the potential downsides of workplace romances. But because of potential costly litigation and interruptions to workplace efficiency and morale, at the very least it makes business sense to develop and coordinate workplace policies to discourage workplace romances and have steps in place to identify and quickly contain potential conflicts as they arise. The minimal resources required to assess a business's culture and determine what measures might work best in any given environment will go a long way toward contributing to the business's continued efficiency and success.
Victoria L. Donati and Jason C. Kim are partners in the labor and employment practice group with the Chicago-based law firm Neal, Gerber & Eisenberg LLP.
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