United States: When Cupid's Arrow Strikes The Workplace

Last Updated: February 16 2016
Article by Adam R. Seldon

With Valentine's Day approaching, love is in the air, and employers need to be mindful of the risks associated with workplace romance. While these risks exist year-round, the upcoming Valentine's Day holiday may trigger inappropriate workplace behavior that workers might not otherwise engage in throughout the year.

Employers should use Valentine's Day as an opportunity to examine their workplace policies to ensure they adequately address the risks associated with workplace romance. Here are some tips for employers looking to minimize their liability for workplace love gone-awry.

Ban Supervisor-Subordinate Relationships

According to a recent survey by CareerBuilder.com, 37% of employees have dated a co-worker. This statistic reveals that co-worker relationships can lead to romance where the individuals share familiarity, commonality, proximity, and convenience.

While it may seem that one solution to avoiding the problems that tend to arise with workplace romance is to ban workplace relationships, a company should carefully consider whether a blanket ban makes the most sense for its culture. A policy that imposes a blanket ban on co-worker dating may ultimately put an employer in the awkward position of selective enforcement. Indeed, no two romantic relationships are alike, and their impact on the workplace varies. For example, a romantic relationship between a supervisor and subordinate is likely to cause many workplace concerns, whereas a romantic relationship between two productive employees at the same hierarchical level who behave appropriately at work may not. A blanket ban policy may be too broad to cover the various types of romantic relationships in the workplace, and if an employer treats one office relationship differently than another under this policy, it subjects itself to a potential discrimination or differential treatment claim.

If a blanket ban on workplace romance is not the answer, then what is? Employers should consider implementing other policies to shield or limit their exposure to liability when office relationships fail. For example, a policy that at least bans romantic relationships between employees who share a supervisory relationship is highly recommended. When a romantic relationship exists between a supervisor and a subordinate, the supervisor's decisions regarding compensation, promotions, scheduling, and other conditions of employment may be called into question. Indeed, such romantic relationships have a tendency to create a perception of favoritism amongst the subordinate's co-workers, which could lead to gossip and feelings of distrust, ultimately impacting employee morale and productivity. Additionally, if the supervisor-subordinate romantic relationship goes south, the subordinate may claim that he/she has been discriminated or retaliated against if/when – he/she is later disciplined, demoted, or terminated. Worse yet, the subordinate may later allege that the relationship and the courtship were unwelcome, subjecting the employer and the supervisor to potential sexual harassment liability.

Consider a Cupid Contract

Employers can further attempt to limit any related conflicts of interest by requiring that employees disclose workplace relationships. For example, if an employer knows of a romantic relationship, it can take precautionary measures, such as reassigning one of them to a different department. Full disclosure also allows the employer to monitor the relationship, ensure that it is consensual, and determine whether it adversely affects performance or the workplace.

The required disclosure of romantic relationships also provides the employer with an opportunity to enter into a cupid contract (aka a "love contract") with the co-workers who are dating. A cupid contract may help shield an employer from sexual harassment liability where the contract explicitly states that the employees are engaged in a consensual relationship that is welcomed. When the employees sign the cupid contract, they should also be provided with a copy of the company's sexual harassment policy. Indeed, the cupid contract itself should reference the company's sexual harassment policy and state that the employees agree that they will immediately inform the employer if their relationship becomes unwelcome.

Should litigation arise, cupid contracts may establish that as far as the employer was aware, the relationship was consensual and the employees involved both had knowledge of, and promised to comply with, the employer's sexual harassment policy.

Workplace Policies and Training

In addition, every employer should have a sexual harassment policy in place that clearly delineates the types of conduct that are prohibited. The employer's policy should prohibit any conduct that could be viewed as offensive or unwelcome.

An effective sexual harassment policy should also provide a clear complaint procedure for employees to lodge claims of sexual harassment. The complaint procedure should identify specific individuals who employees can contact if they believe sexual harassment has occurred. It should also provide that employees are free to bring any complaints of sexual harassment without fear of retaliation. Multiple avenues to make complaints of sexual harassment are recommended, because employees may not avail themselves of the complaint procedures if their only option is their supervisor, who could potentially be the perpetrator of the harassment. By providing multiple points of contact for employees to make complaints, an employer is more likely to nip a problematic situation in the bud before it turns into a harassment claim.

Employers should also have policies mandating professionalism in the workplace. Such policies should prohibit kissing, cuddling, or other forms of inappropriate sexual behavior at work.

But a policy is only as good as the piece of paper it's written on, meaning that employers must do more, beginning with routinely educating and training their employees on sexual harassment issues. Valentine's Day seems like a perfect time for employers to redistribute their sexual harassment policy and provide this kind of training. As a best practice (and as a matter of law in many cities and states), employers should provide annual sexual harassment training to their employees to ensure they know what conduct is prohibited and the procedures for making complaints.

Investigate All Claims

An employer may also shield itself from sexual harassment liability if it can show that it took steps to prevent or stop the alleged conduct. As a result, employers must promptly investigate all employee complaints of sexual harassment – even complaints that stem from a consensual or once-consensual office relationship. If the employer gives such complaints short shrift, it runs the risk of subjecting itself to liability if litigation follows the employee's complaint. Moreover, deviating from the employer's sexual harassment policy and treating one employee's allegations differently than another's subjects the employer to a potential discrimination claim.

Takeaway

The risks associated with workplace romance exist year-round for employers. Because Valentine's Day tends to bring out the romantic in all of us, it presents employers with an excellent opportunity to ensure they have policies in place to shield or limit their liability in the event a romantic relationship amongst co-workers turns sour. Employers should take this opportunity to educate and train their employees at all levels on their sexual harassment and professionalism policies in order to avoid the next office breakup from spilling into the courtroom.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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