The Perils of Provider/Staff Romantic Relationships
by Randall Sutton
Saafeld Griggs PC
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 survey estimated that 80 percent of all employees have either observed or been involved in a romantic relationship 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 staff. For this reason, the job can be a perfect matchmaker. Medical practices are especially effective in fostering romantic relationships, particularly between providers and staff. Providers work closely with their staff and enjoy a position of respect and authority, which has the potential to foster romantic interest.
The Problem with Providers Dating Staff
Even though romantic relationships in the workplace are common, employers have legitimate reasons for concern 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 provider and his staff person, those emotions and potential hostilities can manifest themselves in claims of retaliation or sexual harassment. Worse yet, the provider may feel regret about the relationship and its impact on his professional relationship with the staff person. In such a case, the provider may feel trapped in the relationship, knowing that exposure or termination of the relationship could have a serious impact on his career and reputation.
Sexual harassment laws prohibit “unwelcome” sexual advances. Technically, if a provider and his assistant are in a true consensual romantic relationship, there is no sexual harassment claim. However, what happens if the staff person has performance issues, or worse yet, is fired? Even if the employee had documented performance issues, the romantic relationship opens the door for the former employee to claim that the relationship actually was not consensual.
I have handled many cases where I know the provider and the staff person had a consensual relationship, but the former staff person now alleges that she was forced to submit to the relationship and did not want to be a part of it. The argument is typically that the provider exercised his position of power, and the staff person was in fear of losing her job if she did not participate in the relationship. I say “his” and “her” not to be stereotypical, but rather to reflect the reality that in most cases of this nature, the relationship is between a male provider and a female assistant, technician, or clerical person.
Being sued is always a hassle, but when an employee accuses her boss of sexual harassment, it can also be quite embarrassing. Most relationships have an electronic footprint that becomes the source of discovery in litigation. In an effort to prove the relationship really was consensual, the practice’s lawyers defending a sexual harassment lawsuit 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 and Valentines’ Day cards, and scan credit card bills. Of course, the former employee’s attorney will do the same. As discovery proceeds, details about rendezvouses, gifts, and bedside confessions will become a topic of depositions.
Another drawback of workplace romance, even where the romance is clearly consensual, is the impact the relationship may have on other staff. The staff person’s co-workers may feel that the provider is playing favorites with his “significant other.” This may create unnecessary distraction in the workplace, and be the source of office gossip, undermining both productivity and the reputation of the provider. Although lawsuits by coworkers are typically not successful, the appearance of favoritism is nevertheless bad for morale.
What is the Practice to Do?
Given the downsides of even consensual agreements, are there ways a practice can regulate romantic relationships? It is lawful for an employer to implement a “no dating” policy. As with most things, that’s 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 practice’s business. As a practical matter, it’s also very difficult to draw the line between ordinary interaction between providers and staff, and an interaction that falls within the definition of “dating.” Is a lunch considered “dating”? What if it’s at the fast food place next door? What about dinner or a ride home? What if other employees are present? Another important consideration in drafting the policy is to decide what the consequences of a violation of the policy may be. Typically, the practice will reserve the right to transfer, reassign or terminate both the provider and the staff person. Despite the problems that may arise when drafting such a policy, practices should consider whether a formal policy of some sort is necessary.
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 medical practices, which serve several purposes.
The consensual relationship agreement confirms the staff person’s awareness of the practice’s nondiscrimination policy, and is used in conjunction with interviews to help verify and document that the staff person 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 practice, 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 staff person later feels she is the victim of harassment, the parties must immediately notify the practice so that the practice can take effective steps to remedy the issue.
Provider/staff relationships are not the only form of romantic relationship in the workplace, but they are certainly the most troublesome. Those practices that think ahead and have policies and training in place will be better prepared to manage a relationship should it arise. Should the practice become aware of a romantic relationship, prompt action to investigate and respond can help avoid the prospect of costly and protracted litigation.