With Valentine’s Day approaching, it is a good time to remind employers that dear old Cupid is alive and well, and strutting his stuff in the workplace. I won’t bore you with the statistics about how many romantic relationships blossom in the workplace, and how many of those end up in marriage or crash and burn like the Hindenburg. As many employers already know, it is not just the parties actually involved that can get burned when it comes to workplace romances. Most often, it is the employer that feels most the heartburn when workplace romances turn sour. Because romantic workplace relationships will develop, regardless of what an employer does to try to stop them, here are some thoughts about how to protect your workplace and avoid the inevitable sexual harassment lawsuit.
Don’t Put Yourself Between a Rock and Hard Place by Banning Office Relationships
As I said, romantic workplace relationships will develop, no matter what policies employers have in place to prohibit them. These policies simply are unrealistic and ineffective. Policies that prohibit romantic relationships merely prompt employees to hide the relationship and lie to cover their tracks. As you can imagine, this does not bode well for a happy, productive workforce … and that’s before the relationship heads south. Imagine trying to supervise an employee who just got dumped by her (covert workplace) boyfriend. When you ask her what’s going on with her performance, she either lies and tells you nothing to perpetuate the secret, or unleashes the tale of the forbidden affair and all its details. This leaves you, the employer, with two choices. You either enforce your "Workplace Relationships Prohibited" policy, which means you may have to fire a good employee for something that could have been handled differently and likely avoided, or, you choose not to enforce your policy and communicate to your employees that you don’t enforce your policies. And keep in mind, co-workers will know about the affair long before you ever do, so they will know when you choose not to do anything about it. As you can see, a prohibition on these relationships is not only unrealistic, it’s ineffective and distracting.
So, to avoid that awkward situation between a rock and a hard place, don’t flat out prohibit such relationships. Instead, recognize that these relationships happen, and put policies and procedures in place to deal with them when they do.
Steps for Employing Targeted Workplace Relationship Policies
- Come Out Come Out Wherever You Are. Require Disclosure Of Office Relationships.
Relationships between co-workers are difficult enough for employers to handle, but when those relationships turn into sexual harassment claims, the employer has the affirmative Faragher/Ellerth defense and can only be liable it was negligent either in discovering or remedying the harassment.
When the romance is between supervisor and subordinate or on an executive level, the stakes become higher for the employer. In a supervisor on subordinate sexual harassment case, the Faragher/Ellerth defense is not available. Meaning, if the supervisor’s harassment of a subordinate employee culminates in a tangible employment action against the subordinate, like termination or a demotion, the employer will be strictly, or automatically, liable. If the harasser is a supervisor, but the subordinate has not been subject to a tangible employment action, the employer can avoid liability by showing: (1) it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior"; and (2) that the complaining employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise" i.e., failed to follow the employer’s harassment reporting policy outlined in the employer’s handbook. While the Supreme Court grapples with the issue of who qualifies as a "supervisor" in this context in Vance v. Ball State University, a case that is awaiting decision, employers can get ahead of the issue and put policies in place to deal with disclosed relationships.
A more targeted policy that requires employees to disclose romantic relationships and provides that employees may not be in a romantic relationship with anyone they have supervisory authority over or with someone who has supervisory authority over them area advisable. In the event a supervisor/subordinate relationship is disclosed, the company can then review their workforce needs to determine if a transfer or schedule change would be appropriate to accommodate the relationship. If not, employees should be informed that they may be subject to termination.
- Sign on the Dotted Line. Have Employees Enter Into a Consensual Relationship Agreement, i.e., A Love Contract.
A Consensual Relationship Agreement, a/k/a, a "love contract" establishes workplace guidelines for workplace dating or romantically involved coworkers. The purpose of the policy is to limit employer liability in the event that the romantic relationship ends.
A love contract is kind of like a pre-nup agreement between the two employees involved in the relationship. Instead of dividing assets ahead of time though, it protects the employer and provides that if (when) the relationship fails, neither employee will blame (sue) the company. Although employers may be squeamish about approaching their employees about signing these contracts, the benefit to the employer is that the contract can require the employees to waive claims that may have already accrued prior to the signing of the agreement.
So what else should be in a love contract?
- Statement of Consent: Typically, a love contract requires the two employees in a consensual dating relationship to sign it and declare that their romantic relationship is voluntarily and without any type of coercion or duress.
- Prohibited Conduct. They should also outline what conduct in the workplace is and is not appropriate. This keeps all the "love" from spilling out into and distracting the workforce, which could make it uncomfortable for other employees.
- Arbitration. Another helpful feature that can be included in a love contract is a binding arbitration clause. This type of clause makes arbitration the only grievance process available to the romantically-linked employees and eliminates the possibility of a later sexual harassment lawsuit if (when) the relationship ends.
When the employees sign their love contract, it is also a good opportunity for the employer to remind the employees of the company’s anti-harassment and anti-discrimination policies.
- "You Are Not Doing That Here!"
In the event a workplace relationship is disclosed, the employer can get ahead of it. Office romances don’t just create liability for employers dealing with the employees in the relationship. Lawsuits stemming from workplace romances can come from all sides, including from employees who feel they are being discriminated against or harassed because of an office relationship. This typically comes in the form of a discrimination suit from an employee believes an employee in the relationship is getting more favorable treatment. Just because an employer allows office relationships to happen does not mean the employer relinquishes control over its workplace. Employer policies also should explicitly indicate that employees have no expectation of privacy and define what conduct cannot occur in the workplace, i.e., no "public displays of affection."
It is also important that employees know how to complain about harassing behavior and that managers are trained how to respond to it. This can mean the difference between an employer being liable or not. This also means that all complaints should be taken seriously and that a thorough investigation into all complaints must be done. By now, most employers know they have to have anti-harassment policies and reporting and investigation protocols. Just remember, they apply in workplace romance situations too. So, train, remind, enforce, investigate and take seriously!
The heart wants what the heart wants. Since you likely can’t stop them, an employer’s best defense is to deal with workplace romances head on. This means making your employees in those relationships deal with it head on too by disclosing their relationships and by signing agreements to deal with the potentially legal ramifications from the fallout. Most importantly, make sure your anti-harassment policies are up to date and that your complaint procedure protocols are up to date and strictly and fairly enforced.