Workplace Romances: Potential Risks for Employers

By Barrie Gross, Esq.

We all know or have heard about couples who met at work, fell in love, and lived happily ever after. Given the number of hours we spend at our jobs, it's not surprising that many love matches

have been made in the workplace. Unfortunately, not all love stories end happily. But even if they do, the potential problems employers face from romances at work should not be ignored.

In a 2006 survey published by the Society for Human Resource Management and CareerJournal.com, 80% of human resources professionals and 60% of employees polled said that there should not be a romance between a supervisor and subordinate. (Interestingly, that 80% for HR professionals represented an increase from the prior year's results while the 60% for employees represented a 10% decrease.) And only 26% of employees polled believe that romance at work should not be between people with a significant rank difference. Combine these numbers with the fact that 40% of employees polled reported that they had a romance at work and it's clear that workplace romances remain a potential source of problems for employers.

What are some of the workplace issues that can arise when supervisors and subordinates get romantically involved? It's not a tough list to piece together and here are just a few, in no particular order:

• Perceived favoritism by other employees
• Diminished credibility of the supervisor in the eyes of his/her team
• Lowered employee morale
• Potential conflicts of interest
• Violations of company policy
• Challenges to consistent enforcement of company policy
• Sexual harassment or discrimination claims by other employees
• Sexual harassment or discrimination claims by one of the partners if the relationship ends badly
• Internal gossip and rumors that can impact the overall work environment and the longer term careers of the individuals who are involved in the romance
• Privacy issues associated with employer inquiries into the romance

In particular, the issue of favoritism became a very real concern for employers when, in 2005, the California Supreme Court decided the case of Miller v. Department of Corrections. Miller involved a prison warden who had consensual affairs with three of the female corrections officers. According to the plaintiff (another female corrections officer), the three paramours received preferential treatment regarding promotions and transfers. Knowledge of the affairs was relatively well known and there was a general perception in the work unit that the women were treated more favorably. And the evidence showed that the warden's favoritism toward the women who had relationships with him was at the expense of others who were prevented from being promoted or transferred to other assignments.

One incident of favoritism generally would not be enough to create a hostile work environment, but the Miller court ruled that a hostile work environment could result from a "widespread" atmosphere of sexual favoritism. While the fact pattern in the Miller case may not be common, favoritism resulting in unlawful sexual harassment remains an issue for employers.

The potential for harassment claims is even broader than claims based on favoritism. What about other employees who are forced to witness ongoing public displays of affection by the supervisor and the subordinate? Is that appropriate at work? That sort of conduct, even though it may not purposely be directed at those people who find it offensive, can definitely result in litigation. And what if the relationship ends and one partner does not take it as well as the other? This situation is ripe for harassment claims if the conduct that was previously welcomed by one partner is now considered by him/her to be unwelcome.

Other issues can come up even in cases where an organization is alert to the relationship. For example, often an employer will resolve the potential for conflicts of interest by transferring one of the employees in the relationship to a different group so that the couple is not in the same reporting hierarchy. But, depending on which partner you transfer, their role before the transfer, and their sex, you can be exposed to additional claims of sex discrimination. And if you tend most often to transfer the subordinate, you can undermine employer credibility and decrease overall employee morale.

With all this being said, what's an employer to do? Can you eliminate risks associated with romances at work? No, not completely. But if you work with your human resources department and legal counsel before problems arise, there are several "best practices" you can put in place for risk management:

• Consider developing a policy on workplace romances. Workplace romance policies are not for every organization and, frankly, there's good reason for that. Policies that prohibit all employees from dating any other employee are difficult to enforce, even if they are legal. The same is true about policies that prohibit any supervisor from dating any non-supervisory employee. But after thinking about your organization's environment and culture and consulting with your legal counsel, you could decide, for example, that your organization wants a policy that prohibits dating between supervisors and subordinates who are in a reporting relationship. If you do write such a policy, you'll also need to include the couple's disclosure obligations, the actions the company may take, and the consequences of violating the policy. And it's a good idea to include provisions that reinforce the general expectation of professional conduct from everyone at all times.
• Train your entire workforce about sexual harassment and include the issues raised by romances at work and your standards for professional conduct. Employees of all levels should be educated about the types of conduct that could be considered unlawful harassment. Make sure your employees understand what is considered appropriate and inappropriate behavior at work and be explicit that your organization expects employees to treat each other with respect at all times. Also, be sure your supervisors understand that relationships with subordinates bring their credibility into question and raise significant concerns about conflicts of interest and harassment.
• Distribute your harassment policy on an annual basis. Some states require that you distribute your harassment policy or other notice about the harassment laws on an annual basis. But even if you do not operate in those states, it's a good idea anyway. In the event an ongoing or prior romance at work is causing problems, you need to learn about it so that you can take appropriate responsive action. Sharing your internal process for raising those issues is critical.
• Be prepared to take action against employees who violate your harassment (or no romance) policy. You need to enforce your policies in a timely and consistent manner. If a workplace romance gives rise to any policy violations, it is important that you take appropriate responsive action even if one or both of the employees involved are quite senior in tenure or level. If higher level management is not expected to abide by the same standards as everyone else, this is a problem waiting to happen.
• Provide ethics training to supervisors. Ethics is a broad topic with many subparts. One of those subparts should be a clearly communicated expectation that supervisors conduct themselves in a manner that engenders trust in the organization and avoids the appearance of improprieties. Training supervisors about these issues is a good risk management measure.
• Consider "love contracts." In recent years "love contracts" have grown in popularity, even though they are not the norm and are largely untested in the courts. But using a love contract for relationships between supervisors and subordinates is something to consider with your counsel. A "love contract" is basically an agreement between employees involved in a romance in which they confirm that the relationship is consensual and they agree to comply with your harassment policy, report any violations, and behave professionally at work. These contracts won't prevent harassment claims but they may help with your defense.

Workplace romances are a reality. If you partner with your human resources organization and legal counsel now to put some protective measures in place, you will be ahead of the game if and when issues arise. Love may be in the air but it doesn't have to poison the workplace. Be proactive. Set conduct expectations. Enforce your policies. Train your workforce about appropriate and inappropriate conduct. Taking action now will help you continue to maintain a professional environment for all your employees going forward.

---

Note: This article does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.