Addressing Workplace Romance Issues

by Butler Snow LLP

What do Bill and Melinda Gates and Barack and Michelle Obama have in common? A hint: It is the same thing that Jim Halpert and Pam Beasley ("The Office"), Sam Malone and Diane Chambers ("Cheers"), Don Draper and Megan Calvet ("Mad Men"), and William Oefelein and Lisa Nowak (star-crossed and erstwhile lovers, NASA astronauts; remember she drove from Texas to Florida—wearing an adult diaper—to exact revenge for his dumping her?) also have in common?  Okay, one more hint—Bill Clinton and Monica Lewinsky have this in common, too.  Yes, of course, they were all involved in workplace romances, or, maybe something very like a romance.  As this list demonstrates, sometimes these things work out (see Bill/Melinda and Barack/Michelle) and sometimes they don’t (see William/Lisa and Bill/Monica).  And don’t ask The Big Dog or Kwame Kilpatrick how it works out when you have an office relationship and then lie about it.

So what does any of this have to do with the workplace?  Anyone who tries to manage a sexually diverse office or other place of work will tell you that dealing with the spillover of private romantic relationships between co-employees is one of the most hair-pulling issues they have to dealworkplace romance with. What’s the problem with office romance, you ask? Aren’t folks who are above the age of consent entitled to decide for themselves how to spend their leisure time?  Well, yes, but as with most things, there are limits.   The surveys that have been done are all across the map, but one thing is clear—romantic relationships between employees are very common.  The frequency ranges from 30% in one study to 70% in another. According to one study, as many as 16% of employees who responded admitted to dating the boss. Sometimes things do work out; one study reports that half of married couples met in the workplace.  So, what’s the problem?  The problem, of course, is that many of these relationships don’t work out.

Relationships between employees of the same rank rarely prove to be problematic.  The reason is clear: neither party has any power to harm the other in the workplace.  Yet, where one party is of higher rank, especially when the superior is in the direct chain of command of her subordinate lover, problems often ensue.  Even while the romance flourishes, issues may arise. It is not illegal for a supervisor or manager to favor her subordinate/lover, but it will often cause productivity and morale problems among the other employees who resent the "paramour favoritism."  More often, problems arise when the subordinate employee decides not to consent to the relationship any longer.  If something adverse happens to the employee, all of a sudden they say that the relationship was never really consensual at all; it was coerced, thus leaving you (the employer) with a quid pro quo sexual harassment case staring you in the face.  Or, you may have an allegation that the employee was coerced into continuing the relationship by threat of retaliation.  Or, you may have an allegation of actual retaliation.

Other issues can arise, though—for now—less frequently.  Condoning open workplace romances could lead to a charge of sex discrimination in the form of a hostile environment.  One state supreme court (you won’t be surprised that it is California’s) has upheld this theory as a valid one.  Industrial psychologists are beginning to discuss in academic papers and on the witness stand a relatively new concept called "ambient" sexual harassment, which can occur when the employer allows, in effect, a sexual atmosphere to permeate the workplace.

There is no doubt, then, that office romances can be a problem, but what can you do about it?  If the employees keep their relationship to themselves and away from the workplace, and if they’re of equal rank, there’s not much you can do.  In some states where there are constitutional privacy rights (again, see California), there’s probably nothing you would even want to try to do.  Even so, there are options for an employer who wishes to minimize its risk from the fallout of failed relationships.

  • The employer could promulgate a policy stating that any supervisory or managerial employee who has a romantic or intimate relationship with a subordinate will be disciplined and the discipline will be termination. This policy would probably apply as well to managers or supervisors of equal rank who could nevertheless have influence over the worklife wellbeing of the other—such as an HR manager and a line manager.
  • Non-fraternization policies are sometimes a good idea. Again, these should be limited to the supervisor/subordinate context because of the much higher risk of liability.

Many employers are now requiring what are somewhat jocularly called "love contracts."  These are written agreements between the lovers, brokered by the employer, and usually include an acknowledgement that the relationship exists and that it is consensual; an acknowledgement that there has been no intimidation; an agreement that the parties have read and understand the company’s sexual harassment and anti-discrimination policies; an agreement that the parties will inform the company if the situation changes; and an agreement not to retaliate against the other.  These love contracts are not releases, but they could mitigate a problem down the road, although they have not yet been validated by any court.

Finally, it should go without saying that this is just one more on the growing list of topics on which employers should train their supervisors and managers.  If for no other reason than the risk of immense personal embarrassment, employees should be aware of the havoc a workplace fling can wreak.  It is good to remember what happened to David Letterman.  As you may recall, he had sexual affairs with several women on his TV show staff.  Somehow, a miscreant got evidence of these affairs and tried to blackmail Letterman for $2,000,000.  Letterman notified the police and admitted all on his show. Your employees or clients probably won’t have to go on national TV to confess, but it still wouldn’t be pretty.

Dealing with workplace romances is never easy, but having clear policies of what you will and will not tolerate in your workforce is the first step towards safeguard from liability, or at least headache. If you have any concerns over workplace romances that exist in your workforce, then we recommend that you contact the author of this article or another Butler Snow Labor and Employment attorney for guidance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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