Is Cupid wielding arrows in your company? Clear guidelines — in writing — can keep employee relationships from sparking lawsuits, conflicts of interest and unhealthy favoritism
The high-ranking female manager — let’s call her Maria — had arrived at the human resources office with a complaint. “I haven’t yet received my performance review. It’s past due,” she said.
The HR director looked up in surprise. “I thought they all went out a long time ago. I’ll look into it.”
Shortly thereafter, Maria’s supervisor was explaining himself to the HR director. “I can’t review her. She and I were dating and the relationship ended,” he said. “I have to tell you honestly that my review would not be a good one, and she would say the bad review is because she ended the relationship. And by the way, she did not end it. I did.”
The man was terminated because his employer had a strict no-dating policy for supervisors and subordinates. His relationship had interfered with his performance.
But what happened to Maria? We’ll find out later in this article. For now, though, let’s consider how Maria’s story illuminates an issue that has moved to the front burner for employers large and small: workplace dating policies.
Romance in the workplace
The growing attention to effective office fraternization policies stems from a deeper trend: More people are looking at the workplace as a legitimate source for dating partners.
“Workplace fraternization is becoming a bigger issue with younger people who are spending more time at their place of employment, giving them more opportunity to develop relationships with co-workers who share their interests and education and background,” says Gary Phelan, shareholder of the law firm Mitchell & Sheahan PC in Stratford, Connecticut. “The boundaries between personal and work life are blurring and even disappearing, thanks not only to cultural trends but also to social media, which allows people to engage more easily with one another.”
With the increase in workplace dating has come a corresponding uptick in managerial disruptions and legal headaches — developments that, in turn, are motivating employers to toughen up their workplace dating guidelines. “Companies are starting to enforce zero-tolerance policies, cracking down harshly on individuals whose conduct may constitute sexual harassment,” says Robert J. Nobile, a partner at Seyfarth Shaw LLP in New York. “Conduct that in the past might not have resulted in termination may well do so today.”
One other force is pushing employers to take action: the arm of the law. “Ever since the #MeToo movement began, many states and municipalities have started cracking down with tougher legislation related to sexual harassment in the workplace,” Nobile says. “They are requiring employers to conduct annual training on what constitutes sexual harassment, to post notices detailing how employees should report incidents of harassment and to have employees sign documents acknowledging an understanding of their rights. Some states even require employers to inform workers of the types of damages they can pursue if they are harassed.”
These developments are occurring beyond the sphere of traditional relationships. “Years ago, these issues were confined to male and female partners,” Nobile says. “Today, the same issues arise with same-sex couples, and the same approaches have to be taken.”
Bosses and subordinates
Employers are turning most of their attention to romantic relationships that occur within a chain of command. That’s because dating between supervisors and subordinates has the most obvious potential to spark conflicts of interest, charges of favoritism and lawsuits for sexual harassment, legal experts say.
While a relationship between a manager and a subordinate can go well over the long term, the practical reality is that it may end very badly. “Most people keep their emotions off the job and maturely handle breakups,” says Bob Gregg, co-chair of the employment practice law group at Boardman & Clark LLC in Madison, Wisconsin. “Some do not, and the aftermath can result in litigation. Continuing advances from a supervisor, while at one time may have been mutual and welcome, may become unwelcome sexual harassment. The company can be liable for failure to address and stop these aftermath behaviors.” In fact, a substantial number of sexual harassment cases have resulted from what were, at one time, consensual relationships.
Employers must take all these possibilities into consideration. But what exactly is the best policy? A blanket prohibition on all such relationships? Or a gentler approach requiring reporting and accommodation?
The first option would seem to offer the greatest protection to the employer. After all, consistently terminating supervisors in such situations would seem to remove dating relationships as potential irritants in the workplace. But the picture is a little murkier than it seems.
“You can say on paper that you prohibit dating with anyone in a chain of command,” Nobile says. “The reality is that romantic relationships will develop anyhow.” And, when they do, the partners conduct themselves under a cloak of secrecy, which can make matters worse. When company management has no way of monitoring a relationship, bad things can happen.
“If two people are dating and all of a sudden there is an issue and the relationship ends, then you end up with a possible problem right smack in the middle of the work environment,” Nobile says. “What happens if one of the parties harasses the other and there is a discrimination charge? It might be too late to do anything about it.”
If you can’t stop people from dating, you can take steps to protect your company. “What I think is a better policy is to require disclosure when a workplace relationship develops,” Phelan says. “That way, it’s out in the open and there can be a discussion with both parties to make sure the relationship is clearly between two consenting adults and is not a product of any sort of unwelcome conduct.”
A policy can state that if anyone in a supervisory role dates a subordinate, both parties are obligated to bring the relationship to the attention of a designated individual. This may be someone in the HR department who can monitor the relationship to avoid any favoritism in which the subordinate receives inflated performance reviews or more attractive assignments and to ensure no sexual harassment occurs down the road if the relationship ends. Additionally, one of the individuals might be transferred to another department so there is no longer direct reporting. The smaller the company, the more limited the number of departments, and the more difficult this approach is.
“Some companies require dating couples to sign ‘love contracts’ that state their relationship is consensual,” Nobile says. “The document also may acknowledge an understanding that the two parties are required to act professionally at all times in the workplace, and that, in the event the relationship ends, they have the duty to disclose that fact to the company.”
How about those relationships that develop outside of a chain of command? At first glance, they might appear benign. In some cases, however, they can create serious problems. “If two people working in the same department are being overly friendly with one another, they may have a negative effect on the work of other employees,” Nobile says. “That effect might be so severe as to constitute an atmosphere that the law would recognize as one of sexual harassment. You also might have the issue of favoritism if one employee helps the other more than others. Either way, the result is a business environment that is not healthy.”
Much depends on the people involved, Nobile adds. “Some people continue to act professionally while they are dating and may even have a relationship that goes on for years without co-workers knowing about it. If they behave professionally then there are no issues. If they don’t it, can be unsettling.”
Some employers have instituted policies prohibiting all dating between co-workers. Again, however, there are problems regarding enforceability, secrecy and the potential loss of talented staff members.
The fact is that such restrictive policies actually have diminished recently. “Policies prohibiting co-worker fraternization were at one time more common than they are now,” Phelan says. “Employers found they didn’t work for two reasons. First, they were difficult or impossible to police because people would engage in relationships secretly. Second, there was a problem in applying a one-size-fits-all policy to various degrees of fraternization. At one extreme, you have people who go out on a single date; at the other, you have people who have relationships that last years.”
Company management may decide to require the reporting of romantic involvements among co-workers. “I would recommend speaking to both of them, to make sure the relationship is clearly between two consenting adults,” Phelan says. “You want to make sure it is not a product of any sort of unwelcome conduct and is not the means to a quid pro quo benefit that can result in a sexual harassment claim down the road.”
In such cases, the human resources department can explain the firm’s harassment policy to both parties. “Put the conversation in writing and have each party sign the document as a record of the discussion,” Phelan says. “If one party later claims he was sexually harassed, there is at least some evidence that he was asked about the topic and he said that was not the case.”
One more thing: Problems also can arise when employees date individuals not employed by the business but who serve it in some way. “Relationships with outside parties such as consultants or vendors can throw a monkey wrench into your operations, as well,” Nobile says. “Suppose someone in your purchasing department starts a relationship with someone who supplies your business with components? Conflicts of interest can arise.”
The possibility also exists that an employee pursuing a romantic relationship with an outside party can spark a harassment lawsuit. Indeed, many state and local sexual harassment laws passed in the wake of the #MeToo movement protect independent contractors, consultants and other third-party individuals. “You have to be careful about all of these contingencies,” Nobile says. “Employers need a bigger pair of eyes these days to see what is going on.”
For all of the variety of workplace dating situations, written policies can help the employer in two ways. First, they establish clear behavior guidelines. Second, they can help defend against charges of invasion of privacy when relationships are investigated. “Having a workplace romance policy, just as having one for anti-harassment, requires monitoring and investigation,” Gregg says. “This can be a more sensitive topic than monitoring and investigating the usual work rule compliance or violation issues. Careless or improper process can result in liability for invasion of privacy, defamation, discrimination, violation of constitutional rights and more.”
A clearly written policy can at least establish management’s rights to monitor and investigate workplace romantic involvement. “A policy decreases anyone’s expectation of privacy regarding relationships arising from the workplace,” Gregg says. “So, there is an established foundation for addressing any concerns, and employees should not be surprised if their relationships are questioned.”
Let’s return to Maria, the manager whose story opened this article. What happened? The employer assigned another manager to review Maria’s work, which was found wanting. Even so, the employer’s attorney counseled against firing Maria. “She will say she had ended the relationship and that her firing was retaliation,” he explained. Instead, the company assigned Maria to a new supervisor and delayed her performance review for six months. She was informed that if her six-month review found good performance, she would receive a retroactive pay increase.
As it happens, the review found she was not working out, so the company negotiated an exit package rather than risk a harassment lawsuit. “In essence, they bought her out,” Nobile says.
Maria’s story shows that a strict no-dating policy with termination can lead to liability. And it throws into stark relief the need for diligence in developing and enforcing efficient and realistic office fraternization policies. “This expensive solution could have been avoided if the relationship between Maria and her supervisor had been reported up front,” Nobile says. “The employer could have taken adequate steps to assure a sexual harassment charge could not be brought.”
And Nobile’s advice for managers looking to start a relationship at work? “The best practice is to just say no,” he says.
Editor’s note: The advice presented in this article is intended for general informational purposes. To create a dating policy for your company or for other guidance regarding how to deal with personal relationships in the workplace, consult your own legal counsel.