Love is in the air, and sometimes those amorous feelings lead to claims of sexual harassment and discrimination in the workplace. As Valentine’s Day approaches, employers should be mindful about office romances in light of some interesting statistics:
• More than 20 percent of married couples met at work, yet nearly half of those employees reported that they did not know if their company had a policy on office romances.
• According to a recent survey, 59 percent of employees admitted that they have been involved in an office romance.
• An additional 64 percent answered that they would be willing to do so if the opportunity arose.
• This same survey reported that 75 percent of employers do not have a policy regarding workplace relationships.
• AshleyMadison.com (a dating site for married people looking to cheat – yikes!) reports that 46 percent percent of men and 37 percent of women have had an affair with a co-worker. Among these cheaters, 72 percent of women and 59 percent of men say that they had their first encounter with the affair partner at a company holiday party … which means now is the time for employers to pay attention!
• A different 2013 survey indicates that 92 percent of employees feel they should not have to report their office romance to Human Resources.
• That same survey shows that nearly 85 percent of surveyed workers believe work colleagues should be allowed to have sex and 90 percent admitted being (or having been) attracted to a co-worker.
It’s Only Love, What’s the Harm?
While consensual office relationships are more commonplace than in the past, they can trigger business and legal headaches for employers when the relationship fizzles or is no longer consensual. Moreover, fellow employees may feel resentful, jealous, uncomfortable, or intimidated (especially in relationships between a supervisor and a subordinate), leading to complaints of sexual harassment, discrimination, or retaliation.
Importantly, claims may be brought not only by the individuals in the relationship, but even by third parties. Complaints of “paramour favoritism” are on the rise and are being filed by employees who allege they are overlooked due to preferential treatment towards a co-worker who is engaged in a romantic relationship with the boss. While courts differ on whether such claims are meritorious, turning a blind eye to such relationships may result in business interruption and liability.
In 2011, for example, the EEOC reported that 11,364 charges of sexual harassment were filed, and 16.3 percent of those were filed by men. The EEOC recovered more than $52 million in damages for sexual harassment claims in 2011. Employers might not be able to prevent love in the office, but they can take action to mitigate potential liability. An important initial measure is to draft a good policy depending on your company’s size, structure, business goals, and culture. If you implement an office dating policy, you must enforce it uniformly and take appropriate and equal action for violations of the policy.
What Does Company Policy Say?
Now is a good time for employers to update or create a policy governing dating among workers. While some policies prohibit romantic relationships altogether, many employers recognize that employees will date each other regardless of policy. In fact, they might “sneak around” to avoid violating the policy, which could create even more tension if the relationship is discovered or known only to a select few. In addition, strict no-dating policies may be difficult to implement and enforce, as they may not clearly define the conduct that is forbidden (e.g., does the policy prohibit socializing, dating, romantic relationships, or something else?).
Some policies interdict dating among management and staff, while others specify that there is to be no fraternization with outside third parties to avoid conflicts of interest or the appearance of impropriety. Still, other organizations mandate that employees who date one another voluntarily inform the company about their relationship.
In such cases, the notification policies direct employees to report their dating relationships to Human Resources, the EEO officer, or a member of management, and they ask employees to sign a written consent regarding the romantic relationship. While this type of policy may seem intrusive, these documents are drafted to protect employers from unwanted complaints of future sexual harassment or retaliation.
When asking employees to sign consents, you should again advise them about the company’s sexual harassment policy and remind them about ramifications of policy violations. Document that the employees entered into the relationship voluntarily, were counseled and – if/when the relationship ends – include a memo in their respective personnel records that the relationship ended, and the employees were reminded about the company’s sexual harassment policy. You should require the dating parties to make certain written representations to shield the company from future claims:
• The individuals have entered the relationship voluntarily and the relationship is consensual.
• The employees will not engage in any conduct that makes others uncomfortable, intimidated, or creates a hostile work environment for other employees, guests, or third parties.
• The employees do not and will not make any decisions that could impact each other’s terms and conditions of employment.
• The employees will act professionally toward each other at all times, even after the relationship has ended.
• The relationship will not cause unnecessary workplace disruptions or distractions or otherwise adversely impact productivity.
• The employees will not retaliate against each other if/when the relationship ends.
Tips for Employers
Employers should prepare and implement a clear policy regarding office relationships or update an existing one, and be sure to disseminate it and obtain employees’ acknowledgements. The policy should address to extent to which office relationships are permissible, and, if appropriate, require employees to promptly disclose the existence (or termination) of a romantic or sexual relationship to a designated member of Human Resources, EEO officer or management. When the employees involved are in a supervisor/subordinate relationship, disclosure is especially critical so that the employer may effectively address the impact of the relationship (e.g., evaluating if it is necessary to change job duties or reassign the employee(s)).
If harassment occurs despite an employer’s best efforts to prevent and stop it, you will have a strong defense if you can demonstrate that you have done the following:
• Implement and enforce a sexual harassment and office romance policy that provides a clear reporting channel and prohibits retaliation for good faith complaints.
• Train new and existing employees on the sexual harassment policy and document the training.
• Train managers on what constitutes sexual harassment and how to handle complaints.
• Train employees to report inappropriate behavior.
• If a relationship develops between a manager and his/her subordinate, transfer one of them, if possible, to eliminate a direct reporting relationship.
• Promptly and thoroughly investigate complaints.
• Take appropriate corrective action to address prior incidents of sexual harassment.
Regardless of the type of policy your company adopts, be sure to customize it to the needs and actual practices of your business. Train employees and managers on expectations governing office romances. A well-drafted and uniformly enforced fraternization (or non-fraternization) policy will not prevent workplace relationships altogether, but it can protect you if you encounter office romances.
Mona M. Stone, of counsel, works in the Phoenix office of international law firm Greenberg Traurig.