Valentine’s Day is a good day to address workplace romance. When I train management teams on sexual harassment, I often am asked about this issue. In many workplaces, co-workers spend a lot of time together. It can be natural to develop social relationships. Sometimes things get romantic. If the relationship is consensual and welcome, should that be a problem?
There are several different ways to address workplace romance. Company culture often influences the approach. Some thoughts follow:
Workplace Harassment Policy/Training
Start with a good workplace harassment policy, and train your employees
- Cover conduct by board members, executives, managers, supervisors, employees, contractors, clients, vendors, and visitors
- Address sexual harassment, and also harassment based on other protected classes like race, national origin, and religion
- Provide examples of conduct that you do not tolerate
- Encourage prompt reporting of unwelcome conduct, and provide several ways to do so
- Prohibit retaliation
- Stress the importance of leading by example
Decide how to deal with situations where employees involved in a workplace romance are married, but not to each other. Do you view this as an indication of poor judgment or dishonesty? Is there a safety risk of a disgruntled spouse coming to the workplace? Could this turn into bad PR for the company? I have encountered few people who would jump at the chance to involve themselves in others’ marital issues. Nevertheless, this issue comes up, and it is good to have a plan.
Examine your culture and decide if there truly is a need to prohibit welcome, consensual romantic relationships between non-supervisory co-workers who cannot influence each other’s pay, assignments, or opportunities for advancement. Perhaps regular training on, and enforcement of, your workplace harassment and general code of conduct policies is an acceptable alternative to an outright ban of all workplace romance. As you decide, consider whether your State or local laws limit an employer’s right to regulate off-duty conduct.
Imbalance of Power
Consider limiting, or prohibiting, romantic relationships between employees in a direct supervisory relationship and/or where there is a substantial imbalance of power. This kind of workplace romance involves several legal and practical landmines. For example, is the relationship truly consensual (as opposed to one person having “consented” solely from fear of job loss)? Are you prepared to deal with actual or perceived retaliation if the relationship ends? Would the relationship result in actual or perceived conflicts of interest? How will you handle other employees’ perceptions of sexual favoritism?
Skin in the Game
If you allow a workplace romance where there is an imbalance of power, consider whether you are legally able to require the individual with the power to indemnify the organization for liability based on his or her conduct toward the other person. Review, among others, applicable wage laws before proceeding. Such arrangement would not solve all your problems or eliminate the potential for employer liability, but it might provide a financial incentive to not abuse the power.
Consider whether it is necessary for employees to report their romantic relationship to HR and/or whether a “love contract” is appropriate. Perhaps one of the great misnomers in employment law, the “love contract” is a document that both employees sign that addresses things like
- The employees understand your prohibition of workplace harassment and how to report unwelcome conduct
- The relationship is welcome and consensual
- Not being romantic at work
- Avoiding efforts to influence each other’s pay, assignments, etc.
- Expectation of professionalism even if the relationship ends
- Commitment to promptly report unwelcome conduct
Love contracts are tricky. Employees may perceive them as too intrusive, which may impact recruiting/retention. In addition, they may discourage employees from reporting their relationship to HR. There’s probably little that is more deflating to a budding romance than having to tell a stranger about it and also being asked to sign a document that all but assumes your relationship will end and emphasizes how you must behave when it does. That said, love contracts may be a good reminder of expectations, especially when dealing with a workplace romance that involves employees in a direct supervisory relationship and/or where there is a substantial imbalance of power.
Exercise caution when requiring separation of employees who are, or were, involved in a workplace romance. When deciding who to transfer, consider potential claims of discrimination. Further, if a relationship that ended involved an imbalance of power, consider whether forcing the subordinate employee to accept an unwanted transfer may itself generate a claim of retaliation. As in most cases, the facts matter.
Dating the Vendor or Client
Think about how to handle romantic relationships between employees and vendors or other business partners, or with clients/customers. Is a ban appropriate? Is your conflict of interest policy, in combination with your workplace harassment policy, sufficient? Will you require the employee to report the relationship to HR?
Take Reports Seriously
Whatever you do, take reports of unwelcome conduct seriously. Never assume that sexual or other workplace harassment cannot occur when two people are, or were, in a romantic relationship. Investigate reports of unwelcome conduct in this context just as you would in any other context.
(This post is not legal advice. Consider consulting with a lawyer about specific situations.)