By: Robert Brody and Matthew Chiota
Relationships in the workplace are a common source of liability for any company, and they are also a fact of work. One study suggested that 60% of adults have had a workplace romance. While these relationships may be inevitable, it is crucial for companies to mitigate their risks through clear and consistent policy enforcement. Employers face difficult decisions on what their work-relationship policy will be. Some companies choose to ban all romantic relationships within the workplace, while others choose to permit them in certain circumstances. The question of what the best strategy is continues to be a challenge.
Risks of Romantic Relationships in the Workplace
There are a variety of risks associated with romantic colleagues at work. The largest and most prominent being sexual harassment charges. The classic scenario involves a supervisor and their subordinate. Even if the relationship appears to be consensual, that is often suspect due to the imbalance in power. However, these charges also exist outside of that power dynamic. Sexual harassment charges often result from a former consensual relationship between co-workers. It is common for work romances to end non-consensually. While one party accepts this, the other may try to repair the relationship. Claims of harassment often stem from this. When relationships end, especially when they end poorly, employers may have legal liabilities for the conduct of the employees.
Relationships between supervisors and subordinates may also create a conflict-of-interest issue for employers. This could lead to liability for discrimination claims in cases where the supervisor-subordinate relationship has produced favoritism or retaliation. Employees are human, and their emotions and feelings towards people are not always unbiased. Retaliating against another employee for ending or refusing a relationship will create a hostile-work environment. Even if the relationship did not actually cause discrimination against other employees, the appearance of favoritism can negatively impact on the productivity and morale of other employees.
No-Fraternization Policy
A no-fraternization policy generally prohibits romantic relationships between co-workers. The scope in which this policy may be written can vary. Such a policy may cover all romantic relationships between co-workers, while others may only prohibit romantic relationships between supervisors and subordinates. No-fraternization policies can be useful to not only mitigate legal liability, but to also send a signal to employees that workplace relationships will not be tolerated due to the serious complications and consequences associated. Practically speaking, these policies can be hard to monitor because employees tend to keep (or at least try to) their relationships private.
Love Contracts
Employer’s may choose to supplement their No-Fraternization Policy with “love contracts”. Love contracts are agreements between the employer and the individuals involved, that their relationship is consensual. Further, the agreement may provide for measures to be taken to mitigate the employer’s risks. Employers may choose to include breakup provisions that would outline and disclose how the company would proceed should the relationship end on bad terms. Oftentimes these provisions include reassignment to avoid interactions, distractions and conflict-of-interest issues between the employees. However, these agreements have their own risks. When employers protect themselves by reassigning employees, it opens the door for a discrimination claim if the reassigned employee believes that the employer discriminated against them in reassignment.
Consistent Policy Enforcement
Workplace relationships have existed for quite some time, and do not appear to be going anywhere. There is no perfect way to eliminate the risks associated entirely. Both completely banning workplace relationships and disclosure policies are useful tools, however they do not cover all the bases. The most important thing for employers is regardless of what strategy is used, the policy must be clear, communicated effectively and enforced consistently.
Brody and Associates regularly advises management on compliance with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
