Many companies prohibit, even require disclosure, of romantic relationships
Earlier this year, Jeffrey Zucker resigned as president of CNN acknowledging that he failed to disclose a consensual romantic relationship with a subordinate, in violation of a workplace policy.
Some might question why businesses have any right to monitor the personal lives of their employees. No reports suggest the subordinate employee objected to the relationship, or alleged a hostile working environment. However, following the #MeToo movement, many companies have adopted policies prohibiting romantic relationships between supervisors and subordinates, and others have adopted policies requiring all employees to disclose the status of a workplace romantic relationship, regardless of supervisory status, in order for the company to manage the potential legal risks that can arise from workplace romances.
The main risk arising from workplace romances is a claim for sexual harassment. Allegations of sexual harassment can arise when a relationship ends, creating an uncomfortable and awkward situation for at least one of the employees. A relationship may start off consensual and welcoming but later sour and normal emotional tensions may creep into the workplace. This can interfere with the employees’ work performance. In some cases, one of the employees may claim that the romantic or sexual conduct was never welcomed, even though to an outside observer it may have appeared otherwise.
In any of these scenarios, continued advances, sexual requests, intimidation or manipulation after the relationship ends may easily set the stage for a claim of workplace sexual harassment. In addition, the end of the relationship often becomes the subject of workplace rumor and gossip, which can aggravate an already harassing environment for an employee.
Even when a relationship between two coworkers is consensual and welcoming, it may cause jealousy or dissension with others in the workplace.
There is frequently a legitimate concern that one of the employees may
have access to confidential information, such as payroll or performance
reviews, and will share that information with their co-worker, giving
that co-worker some sort of advantage in the workplace.
Claims
of “favoritism” or “unfair treatment” based on the relationship may
result in legal claims. While these so-called “paramour preference”
claims are generally unsuccessful in court, the underlying facts may
nevertheless result in legal costs and disrupt office culture.
In
light of these potential legal concerns, employers may naturally want
to take steps to help manage and avoid these costly liability risks and
avoid interoffice conflicts.
For
example, employers may want to consider adopting “anti-fraternization”
policies. These policies clearly define what, if any, dating between
coworkers is permissible in the company’s workplace.
Some
employers may elect to ban all romantic relationships in the workplace.
Keep in mind, though, that the company must “say what it means, and
mean what it says.”
If
the rule is “no relationships,” then this policy should be consistently
enforced or it may aggravate an already difficult harassment situation.
It is important to keep in mind that some studies have found 20 percent
of all married couples met at work. Consequently, a complete ban may
prove impossible to enforce in
many workplaces. Employees may also object that such a policy is an
invasion of their privacy during their non-working hours.
Another
option is to merely prohibit dating relationships between supervisors
and direct subordinates, or any relationship where one party has the
potential to impact (positively or negatively) the other party’s terms
and conditions of employment. But, like the zero-tolerance option, any
flatout prohibition may create unanticipated consequences.
The
most likely is that the affected employees will simply elect to conceal
their private relationship, as seems to have occurred in the situation
with Mr. Zucker. Then, if a workplace romance ends poorly, the employer
may be blindsided by a claim that one of its supervisory employees
sexually harassed a subordinate employee.
To address the reality that, as the poet Emily
Dickinson said, the “heart wants what it wants,” some employers have
recently implemented permissive policies that allow private romantic
relationships between employees so long as the employees immediately
disclose their relationships to a designated person within management.
This
approach allows employers to proactively manage the risk. Additionally,
employers can frequently adjust supervisory responsibility between the
employees, remind them of the company’s rules prohibiting harassment and
conflicts of interest, require them to sign an acknowledgement, and
request them to notify the company if there is a change in the status of
the relationship.
In
addition to written policies, employers should also actively train
employees on workplace rules, including any anti-fraternization
policies, as well as anti-harassment, discrimination and retaliation
policies. By educating employees in writing and through training, the
company is in a much better position to manage and avoid costly
litigation.
Peg
O’Brien, a director at McLane Middleton and vice chair of the firm’s
Employment Law Practice Group, can be reached at 603-628-1490 or margaret.obrien@mclane.com.
By educating employees in writing and through training, the company
is in a much better position to manage and avoid costly litigation.