When Workplace Romance Is a Fact of Life, How Can Employers Limit Their Liability?

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Even with the rise in remote working during the COVID-19 pandemic, workplace romance remains commonplace. In a 2021 survey, the Society for Human Resource Management (SHRM) found that more than one-third of U.S. workers have been, or are currently, involved in a workplace romance – a 7 percent increase over 2020. Some 25 percent of U.S. workers either started a new workplace romance during the pandemic or continued an existing workplace romance that began prior to the pandemic.

Given the ubiquity of workplace romance, it should come as no surprise that corporate executives, including presidents and chief executive officers, engage in office dalliances, too. The recent resignation of CNN’s president, Jeff Zucker, over his failure to disclose his romantic relationship with a subordinate is the latest high-profile example of an office relationship with consequences.

What the SHRM survey and newsworthy executive departures tell us is that employers cannot stop workplace romance from happening. There is no question that workplace romance is fraught with potential liability for employers, particularly when it occurs between employees in a supervisory relationship and the subordinate partner later alleges that the relationship was nonconsensual.

To anticipate pitfalls inherent in workplace romance and limit their liability, all employers should:

Implement and enforce a policy governing romantic relationships.
Barring all amorous workplace relationships is unrealistic. Companies should require employees in a romantic encounter to report it to human resources or a high-level executive, particularly if the employees are in a supervisory relationship. The policy should be clear that any romantic or amorous interactions must be reported; it is not sufficient to wait until the employees are in a full-blown relationship. In addition, the policy should reserve the employer’s right to change a reporting relationship to avoid the potential bias inherent in a consensual relationship and address any concerns that the power dynamic could cause a relationship to become exploitative. Employers should enforce the policy and mete out discipline consistently.

Train employees on the policy as part of harassment avoidance training.
While many personal relationships between co-workers are consensual, some are not. Organizations need to train employees to report nonconsensual advances or relationships that they experience or witness. Employers must investigate any such reports and promise protection from retaliation for those who report in good faith. An increasing number of states and localities now require workplace harassment avoidance training, including instruction on the specific responsibilities of supervisors to prevent and report harassment.

Use consensual relationship agreements wisely and monitor compliance with them.
Widely known as “love contracts,” these agreements serve a useful but limited purpose. While not ironclad, they allow an employer to document that, when the agreement is signed, the relationship is consensual, and that the employees understand the need to notify human resources or a designated executive immediately if the relationship becomes nonconsensual. These agreements are only as good as the company’s efforts to monitor for signs that the relationship has changed and to remain alert to indications of harassment or retaliation between the signatories. It is prudent for human resources to check in with the signatories individually on a regular basis to ensure that the relationship has not changed.

Transfer with caution.
Employers should reserve the right to reassign an employee who is in a romantic relationship with their supervisor to a different supervisor. While reassignment is generally designed to protect the subordinate, it could become or be perceived as retaliatory, particularly if the new assignment is less advantageous. Before making any moves, the organization should evaluate whether the new position and reporting relationship would be equivalent in compensation, responsibilities and visibility.

Although employers cannot realistically stop employees from pursuing a workplace romance, they can take the above steps to protect employees from nonconsensual relationships and retaliatory conduct, and to limit their organization’s potential liability.

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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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