The department manager—let’s call her Susan—had arrived at the human resources office with a complaint. “I haven’t yet received my performance review. It’s past due.”
The HR director looked up in surprise. “I thought they all went out a long time ago. I’ll look into it.”
Shortly thereafter, Susan’s supervisor was explaining himself to the HR director. “I can’t review her. She and I were dating and the relationship ended. I have to tell you honestly that my review would not be a good one, and she would say the bad review is because she ended the relationship. And by the way, she did not end it. I did.”
The man was terminated because his employer had a strict no-dating policy for supervisors and subordinates. His relationship had interfered with his performance.
But what happened to Susan?
Later in this story we’ll find out. For now, though, let’s consider how Susan’s story illuminates an issue that has moved to the front burner for employers large and small: Workplace dating policies.
Romance in the workplace
The growing attention to effective office fraternization policies stems from a deeper trend: More people are looking at the workplace as a legitimate source for dating partners.
“Workplace fraternization is becoming a bigger issue with younger people who are spending more time at their place of employment, giving them more opportunity to develop relationships with coworkers who share their interests and education and background,” says Gary Phelan, shareholder of Mitchell & Sheahan, P.C., Stratford, Conn. “The boundaries between personal and work life are blurring and even disappearing, thanks not only to cultural trends but also to social media which allow people to engage more easily with one another.”
With the increase in fraternization has come a corresponding uptick in managerial disruptions and legal headaches—developments which in turn are motivating employers to toughen up their workplace dating guidelines. “Companies are starting to enforce zero tolerance policies, cracking down harshly on individuals whose conduct may constitute sexual harassment,” says Robert J. Nobile, Partner at Seyfarth Shaw LLP, New York, N.Y. “Conduct which in the past might not have resulted in termination may well do so today.”
One long arm of the law is pushing employers to take action. “Ever since the ‘Me Too’ movement began, many states and municipalities have started cracking down with tougher legislation related to sexual harassment in the workplace,” says Nobile. “They are requiring employers to conduct annual training on what constitutes sexual harassment, to post notices detailing how employees should report incidents of harassment and to have employees sign documents acknowledging an understanding of their rights. Some states even require employers to inform workers of the types of damages they can pursue if they are harassed.”
These developments are occurring beyond the sphere of traditional relationships. “Years ago these issues were confined to male and female partners,” says Nobile. “Today the same issues arise with same sex couples, and the same approaches have to be taken.”
Bosses and subordinates
Employers are turning most of their attention to romantic relationships that occur within a chain of command. That’s because dating between supervisors and subordinates has the most obvious potential to spark conflicts of interest, charges of favoritism and lawsuits for sexual harassment. Companies such as McDonald’s, Intel and BlackRock have recently dismissed executives for conducting consensual relationships with individuals in their chain of command.
While a relationship between a manager and a subordinate can go well over the long term, the practical reality is that it may end very badly. “Most people keep their emotions off the job and maturely handle breakups,” says Bob Gregg, co-chair of the employment practice law group at Boardman and Clark LLC, Madison, Wis. “Some do not, and the aftermath can result in litigation. Continuing advances from a supervisor, while at one time may have been mutual and welcome, may become unwelcome sexual harassment. The company can be liable for failure to address and stop these aftermath behaviors.” In fact, a substantial number of sexual harassment cases have resulted from what was at one time consensual relationships.
Employers must take all these possibilities into consideration. But what, exactly, is the best policy? A blanket prohibition on all such relationships? Or a gentler approach requiring reporting and accommodation?
The first option would seem to offer the greatest protection to the employer. After all, consistently terminating the supervisors in such situations would seem to remove the relationships as potential irritants in the workplace. But the picture is a little murkier than it seems.
“You can say on paper that you prohibit dating with anyone in a chain of command,” says Nobile. “The reality is that romantic relationships will develop anyhow.” When they do, of course, the partners conduct themselves under a cloak of secrecy which can make matters worse. When company management has no way of monitoring a relationship, bad things can happen.
“If two people are dating and all of a sudden there is an issue and the relationship ends, then you end up with a possible problem right smack in the middle of the work environment,” says Nobile. “What happens if one of the parties harasses the other and there is a discrimination charge? It might be too late to do anything about it.”
If you can’t stop people from fraternizing you can take steps to protect your organization. “What I think is a better policy is to require disclosure when a workplace relationship develops,” says Phelan. “That way it’s out in the open and there can be a discussion with both parties to make sure the relationship is clearly between two consenting adults and is not a product of any sort of unwelcome conduct.”
A policy can state that if anyone in a supervisory role dates a subordinate, both parties are obligated to bring the relationship to the attention of a designated individual. This is may be someone in the human resources department who can monitor the relationship to obviate any favoritism in which the subordinate receives inflated performance reviews or more attractive assignments, and also to assure no sexual harassment occurs down the road if the relationship should end. Additionally, one of the individuals might be transferred to another department so there is no longer direct reporting. The smaller the organization the more limited the number of departments, and the more difficult this is.
It’s wise to have employees explicitly acknowledge their understanding of the fraternization policies. “While enforcement of a strict policy against manager-subordinate dating is the best approach, rules against falling in love are not always effective,” says James J. McDonald, Jr., managing partner at the Irvine, Calif., office of Fisher & Phillips. “If an employer does not want to lose one or both employees involved in a relationship, I recommend having the involved parties sign a ‘love contract.’” Such contracts state that the relationship is consensual, that the involved parties acknowledge they are required to act professionally at all times in the workplace, and that in the event the relationship ends they have the duty to disclose that fact to the company.
How about those relationships which develop outside of a chain of command? At first glance they might appear benign. In some cases, however, they can create serious problems. “If two people working in the same department are being overly friendly with one another they may have a negative effect on the work of other employees,” says Nobile. “That effect might be so severe as to constitute an atmosphere which the law would recognize as one of sexual harassment. You might also have the issue of favoritism if one employee helps the other more than others. Either way, the result is a business environment that is not healthy.”
Much depends on the people involved, adds Nobile. “Some people continue to act professionally while they are dating and may even have a relationship that goes on for years without coworkers knowing about it. If they behave professionally then there are no issues. If they don’t it can be unsettling.”
Some employers have instituted policies prohibiting all dating between coworkers. Again, however, there are problems regarding enforceability, secrecy and the potential loss of talented staff members.
The fact is that such restrictive policies have actually diminished recently. “Policies prohibiting coworker fraternization were at one time more common than they are now,” says Phelan. “Employers found they didn’t work, for two reasons. First, they were difficult or impossible to police, since people would engage in relationships secretly. Second, there was a problem in applying a ‘one size fits all’ policy to various degrees of fraternization. At one extreme you have people who go out on a single date; at the other you have people who have relationships that last years.”
Company management may decide to require the reporting of romantic involvements among coworkers. “I would recommend speaking to both of them, to make sure the relationship is clearly between two consenting adults,” says Phelan. “You want to make sure it is not a product of any sort of unwelcome conduct, and is not the means to a quid pro quo benefit that can result in a sexual harassment claim down the road.”
In such cases the human resources department can explain the firm’s harassment policy to both parties. “Put the conversation in writing and have each party sign the document as a record of the discussion,” says Phelan. “If one party later claims they were sexually harassed there is at least some evidence that they were asked about the topic and they said that was not the case.”
One more thing: Problems can also arise when employees date individuals not employed by the business but who serve it in some way. “Relationships with outside parties such as consultants or vendors can throw a monkey wrench into your operations as well,” says Nobile. “Suppose someone in your purchasing department starts a relationship with someone who supplies your business with goods. Conflicts of interest can arise.”
The possibility also exists that an employee pursuing a romantic relationship with an outside party can spark a harassment lawsuit. Indeed, many state and local sexual harassment laws passed in the wake of the ‘Me Too’ movement protect independent contractors, consultants and other third party individuals. “You have to be careful about all of these contingencies,” says Nobile. “Employers need a bigger pair of eyes these days to see what is going on.”
In all of the variety of workplace dating, written policies can help the employer in two ways. First, they establish clear behavior guidelines. Second, they can help defend against charges of invasion of privacy when relationships are investigated. “Having a workplace romance policy, just as having one for anti-harassment, requires monitoring and investigation,” says Gregg. “This can be a more sensitive topic than monitoring and investigating the usual work rule compliance or violation issues. Careless or improper process can result in liability for invasion of privacy, defamation, discrimination, violation of constitutional rights, and more.”
A clear written policy can at least establish management's rights to monitor and investigate workplace romantic involvement. “A policy decreases anyone's expectation of privacy regarding relationships arising from the workplace,” says Gregg. “So there is an established foundation for addressing any concerns, and employees should not be surprised if their relationships are questioned.”
Let’s return to Susan, the female manager whose story opened this article. What happened? The employer assigned another manager to review Susan’s work, which was found wanting. Even so, the employer’s attorney counseled against firing the woman. “She will say she had ended the relationship and that her firing was retaliation,” he explained. Instead, the company assigned Susan to a new supervisor and delayed her performance review for six months. She was informed that if her six-month review found good performance she would receive a retroactive pay increase.
As it happens, the review found she was not working out so the company negotiated an exit package rather than risk a harassment lawsuit. “In essence, they bought her out,” says Nobile.
Susan’s story shows that a strict no-dating policy with termination can lead to liability. And it throws into stark relief the need for diligence in developing and enforcing efficient and realistic office fraternization policies. “This expensive solution could have been avoided if the relationship between Susan and her supervisor had been reported up front,” says Nobile. “The employer could have taken adequate steps to assure a sexual harassment charge could not be brought.”
And Nobile’s advice for management level people looking to start a relationship at work? “The best practice is to just say no.”