[vc_row][vc_column][vc_column_text]By: Randall P. Sutton
At some time during your working life, you may have dated or even married someone you met at work. Work can be a perfect matchmaker, so there are lots of reasons why relationships flourish. Work is where we spend most of our time, and working on tasks together can build personal bonds. When at work, we try to put our best foot forward to make a good impression on those around us. When hiring, employers look for applicants who have personalities that will fit well with the rest of the team. Employees spend long hours with one another working on common goals. The team effort involved in working together on challenging tasks can foster romantic relationships. For supervisors and managers, the position of respect and confidence can likewise foster affection.
The Problem with Supervisors Dating Subordinates
Even though romantic relationships in the workplace are common, employers have legitimate reasons for concern about employee dating. When co-workers date one another, there is always the potential for fallout that impacts the workplace should the romantic feelings fade, or worse yet, become hostile. When the romance is between a supervisor and subordinate, those emotions and potential hostilities can manifest themselves in claims of retaliation or sexual harassment. Worse yet, the supervisor may feel regret about the relationship and its impact on his or her marriage and the working relationship with the subordinate. In such a case, the supervisor can feel trapped in the relationship, knowing that exposure or termination of the relationship could have a serious impact on his or her career and reputation.
Sexual harassment laws prohibit “unwelcome” sexual advances, and are the topic of considerable employment litigation. Technically, if coworkers or a supervisor/subordinate participate in a true consensual romantic relationship, there is no viable sexual harassment claim. However, what happens if a co-worker complains of stalking or harassment, denying that the relationship is truly consensual. Or worse yet, the subordinate in a supervisor/subordinate relationship experiences performance issues or is fired? The romantic relationship opens the door for claims that the relationship was not consensual and that the subordinate felt obligated to submit to the advances of the boss.
I have handled many claims where there is little question that the parties were involved in a consensual relationship, but the former employee now alleges that the entire relationship was a sham. The typical argument is that the supervisor exercised a position of power, and the subordinate was in fear of losing his or her job if he or she did not participate in the relationship.
Being sued is always painful, but when an employee accuses the boss of sexual harassment, it can also become quite embarrassing and distracting to the entire company. Most relationships have an electronic footprint that becomes the source of discovery in a civil lawsuit. In an effort to prove the relationship really was consensual, lawyers for the company and the plaintiff will pour over emails retrieved from hard drives scanned by IT experts. We will review text messages and cell phone records. We will search Facebook postings, read love letters, copy Valentines’ Day cards, and scan credit card bills. As discovery proceeds, details about secret meetings, gifts, and bedside confessions become the topic of deposition questions by the trial attorneys.
Another drawback of workplace romance, even where the romance is clearly consensual, is the impact the relationship may have on others. Co-workers may feel that the supervisor is playing favorites with his or her “significant other.” This may create an unnecessary distraction in the workplace, and become the source of office gossip, undermining both productivity and the reputation of the supervisor. Although employment lawsuits by coworkers are typically not successful, the appearance of favoritism is nevertheless bad for morale.
What is the Company to Do?
Given the downsides of even consensual relationships, are there ways an employer can regulate workplace romance? It can be lawful for an employer to implement a “no dating” policy. However, as with many things, such a policy is easier said than done. Your employees likely perceive this to be an area of personal privacy, and can’t help thinking that frankly, an off-duty romance is none of the company’s business. As a practical matter, it’s also very difficult to draw the line between ordinary interaction between supervisors and subordinates, and an interaction that falls within the definition of “dating.” Is lunch considered “dating”? What if it’s at the fast food place next door? What about dinner or a ride home? A movie? What if other employees are present?
Another important consideration in drafting the “no dating” policy is to decide what the consequences of a violation of the policy may be. Typically, the company will reserve the right to transfer, reassign or possibility even terminate both the supervisor and the subordinate. Despite the problems that may arise when drafting such a policy, it is worth considering whether a formal policy of some sort is appropriate.
Consensual Relationship Agreements
When a romantic relationship does arise, for the reasons discussed above, it is very important to identify the relationship as consensual as early as possible. We draft “consensual relationship agreements” in these situations, which serve several purposes.
The consensual relationship agreement confirms the subordinate’s awareness of the company’s nondiscrimination policy, and is used in conjunction with interviews to help verify and document that the subordinate really is engaged in a consensual relationship. The parties to the relationship are cautioned that the relationship can’t interfere with the work of the company, and the consequences that will be imposed should the relationship become a distraction. The agreement also makes clear that if the relationship ever evolves and is no longer welcome, or in the event the subordinate later feels he or she is the victim of harassment, the parties must immediately notify the company so that the company so that effective steps can be taken to remedy the issue.
Employers who think ahead and have policies and training in place will be better prepared to manage a relationship should it arise. Should the company become aware of a romantic relationship, prompt action to investigate and respond can help avoid the prospect of costly and protracted civil litigation.[/vc_column_text][/vc_column][/vc_row]