by Randall Sutton, Employment Law & Litigation Practice Group
At some time during your working life, you may have dated, or even married, someone you met at work. If you haven’t, then the odds are that you know someone who has. A recent survey estimated that 80 percent of all employees have either observed or been involved in romantic relationships at work.
This really should come as no surprise. Work is where we spend most of our time, and working together on tasks can build personal bonds. When hiring, employers intentionally hire applicants who have personalities that will interact well with existing employees. With this in mind, work can be a perfect matchmaker. The team effort involved in working together is especially effective in fostering romantic relationships, as are the long hours that employees often spend with one another. When supervisors work closely with subordinates in teams, the supervisor or manager often enjoys a position of respect and authority, which likewise has the potential to foster romantic interest.
The Problem with Supervisors Dating Subordinates
Even though romantic relationships in the workplace are common, employers have legitimate reasons for concerns about employee dating. When employees date one another, there is always the potential for fallout that impacts the workplace should the romantic feelings fade, or worse yet, become hostile. If 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 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. Technically, if a supervisor and subordinate participate in a true consensual romantic relationship, there is no sexual harassment claim. However, what happens if the subordinate has performance issues, or worse yet, is fired? Even if the subordinate had documented performance issues, the romantic relationship opens the door for the former employee to claim that the relationship actually was not consensual and that he or she felt obligated to submit to the advances of the boss.
I have handled many cases 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 a hassle, but when an employee accuses the boss of sexual harassment, it can also become quite embarrassing and distracting. 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 lawsuits by coworkers are typically not successful, the appearance of favoritism is nevertheless bad for morale.
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 for clients 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.
Supervisor / Subordinate relationships are not the only form of romantic relationship in the workplace, but they are certainly the most troublesome. 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 litigation.