Author: Beth P. Zoller, XpertHR Legal Editor
Employees who are dating or are involved in a romantic relationship present unique risks for employers and challenges for the supervisors who manage them. From claims of harassment and unfair treatment to inappropriate conduct and workplace touching, workplace romances can lead to risky and unprofessional behavior. This is especially true in light of the recent spike in sexual harassment claims, which have cast a spotlight on harassment and brought renewed interest and scrutiny to already-complicated workplace relationships.
Therefore, it is essential for an employer to protect its own business interests by establishing expectations for employees and maintaining a professional workplace. Failure to do so may result in claims of discrimination, harassment and unfair treatment.
The following are some key steps for an employer to take to monitor and manage dating and relationships in the workplace and reduce the chance of liability:
1. Understand the Risks
When employees enter romantic relationships at work, employers face significant risks such as decreased productivity, inappropriate sharing of confidential information, and lowered workplace morale. Additionally, paramours may engage in inappropriate and unprofessional behavior and make co-workers feel uncomfortable, leading to the creation of a hostile work environment. Even worse, after a relationship ends, an employer may face a sexual harassment or discrimination lawsuit because conduct once welcome during a relationship is now unwelcome. Further, shouting and fighting between the former couple may disrupt the workplace.
Risks are heightened when it comes to relationships between supervisors and subordinates, as an employer may face claims of favoritism, preferential treatment or discrimination by co-workers. An employer may be liable for any supervisory harassment or retaliation after the relationship ends even if it did not know about the harassment or was in any way at fault or negligent.
2. Establish Strong EEO Policies
To protect itself, an employer should establish strong discrimination, harassment and retaliation policies and then incorporate these policies into its employee handbook. The policies should clearly describe conduct that may rise to the level of actionable discrimination, harassment or retaliation. The harassment policy should clearly state that there is a fine line between compliments and flirtation and unlawful harassment, groping and inappropriate touching. Further, the policy should include a multichannel complaint system providing employees with more than one individual to whom to bring a complaint and ensuring that an employee feels comfortable notifying the employer of his or her concerns regarding unfair treatment or improper conduct. Further, it is critical for an employers to take complaints of discrimination, harassment or retaliation seriously and respond to them by following up with an investigation, interim measures and discipline if warranted. The employer should send a clear message that no one will receive special treatment and all will be held accountable for improper conduct.
3. Set Forth Employer Guidelines Regarding Romance at Work
An employer should consider establishing clear guidelines and parameters regarding romance at work by implementing an employee dating and personal relationships policy as well as a conflicts of interest policy. The employee dating policy may ban workplace dating altogether or prohibit relationships between supervisors and subordinates. Prohibiting relationships between individuals in the same reporting chain can minimize an employer's risk for liability. Further, the policy should outline what is considered acceptable and unacceptable workplace conduct, and it may require individuals who are dating to notify management and disclose their relationship in order to ensure that no inappropriate workplace behavior occurs.
Additionally, a conflicts of interest policy obligates employees to disclose any actual or potential conflict of interest that would adversely affect their judgment, objectivity or loyalty to the employer or to their work.
4. Provide Training
In addition to enacting policies, an employer can avoid potential problems and minimize liability by providing regular training to all employees and supervisors. It is not enough to just have the policies on the books. Employees and superiors must understand the policies and their application to actual situations. The training should cover what is considered appropriate and inappropriate workplace behavior and provide employees with guidelines to follow and appropriate boundaries for workplace conduct. It should also communicate what kind of behavior rises to the level of discrimination, retaliation and harassment. Managers and supervisors should be appropriately warned about abusing their power and positions of authority when it comes to workplace relationships. The employer should keep a record of the training to protect against any future lawsuits.
5. Utilize Love Contracts
If two employees are romantically involved, an employer may want to consider utilizing a love contract to protect its interests and establish guidelines on appropriate workplace behavior. In the love contract, the employees will state that the relationship is voluntary and consensual and will not affect the workplace. By requiring employees to disclose the nature of their relationship and be transparent and upfront about it, employers are establishing that the relationship is truly consensual and protecting both themselves as well as the employees. The employees will also acknowledge that they are aware of the employer's policies on discrimination, harassment, retaliation, dating and conflicts of interest that apply to their relationship. Love contracts may be a critical part of minimizing the risk of employer liability, particularly in the event that the romantic relationship ends.
6. Monitor Relationships
Once an employer is aware of a romantic relationship, either between two peers or between a supervisor and a subordinate, the employer should closely monitor the relationship to ensure that it is truly voluntary and consensual and make sure discriminatory treatment and favoritism does not occur. An employer may need to consider transferring a supervisor or subordinate to avoid any conflict of interest or to prevent a supervisor from abusing his or her position of authority. Further, an employer may need to request that employees avoid unprofessional public displays of affection or having couple time interfere with work. Careful monitoring of romantic relationships at work will ensure that all co-workers feel comfortable and reduce distracting workplace conduct.