United States: Regulating Work Place Romances

At some time during your working life, you may have dated, or even married, someone you met at work. If you haven't, then the odds are that you know someone who has. A 1995 survey estimated that 80 percent of all employees have either observed or been involved in a romantic relationship at work.

Even though romantic relationships in the workplace are common, employers have legitimate reasons for concern about employee dating. The biggest fear is a sexual harassment lawsuit arising from either: 1) a supervisor who has a habit of asking subordinates out on dates; 2) an employee who files a lawsuit after a consensual relationship goes sour; or 3) the perception of co-workers that a supervisor is playing favorites with his or her "significant other."

Sexual harassment laws prohibit "unwelcome" sexual advances. Therefore, the participants in a truly "consensual" relationship cannot prove sexual harassment. The difficulty for the employer is proving that the relationship was consensual. Often, an employee will argue that he or she was an unwilling participant in a relationship that merely appeared to be consensual. Even a consensual relationship, if it goes sour, can result in unwelcome advances, stalking, or other predatory conduct.

In a consensual relationship between a supervisor and a subordinate, the subordinate often is the recipient of preferential treatment. Employees have asserted claims for sexual harassment based on the theory that they can't receive the same benefits because they are not "sleeping with the boss." However, most courts have rejected this argument because such a consensual relationship disadvantages both male and female employees equally. The exception, of course, is where a supervisor propositions many employees, and only those who acquiesce receive preferential treatment.

An employer who wishes to do something about consensual relationships between employees has a couple of options. The first is to implement a "no dating" policy. However, the policy must be carefully drafted to avoid several potential problems.

The first problem is that Oregon law protects spouses who work for the same employer. So long as the spouses don't supervise one another, a "no dating" policy enforced against spouses would violate this law. Another problem arises from concerns about an employee's right to privacy while off the job. An employer may violate an employee's right to privacy by regulating the employee's private off-work relationships. The employer is most at risk when trying to investigate and enforce a "no dating" policy by hiring a private investigator to follow the employee around, secretly reviewing an employee's voice mail, or listening in on an employee's office phone line.

As an alternative, some employers require that employees enter a "consensual relationship agreement." The agreement, signed by both employees and management, provides that the employees will not allow the relationship to interfere with or impact the work environment. The agreement also confirms and documents that the relationship is consensual and voluntary. The employer should attach a copy of the company's sexual harassment policy to the agreement to prove that the employee was aware of the sexual harassment policy and had the opportunity to report any inappropriate conduct by the other employee. If done properly, a consensual relationship agreement will make it more difficult for an employee to claim that the relationship was "unwelcome." In addition, the agreement will create a question about why the employee did not seek to stop the harassment by reporting it to management.

When deciding whether to impose a consensual relationship policy, and evaluating what form of policy to impose, the following are some important considerations:

Impact: Consider whether consensual relationships have a positive or negative impact on the morale of your workplace. For example, morale will likely suffer if a company that employs many teenage or college-age employees also imposes a "no dating" policy.The policy must clearly state whether dating among employees is prohibited or merely discouraged. If dating is merely discouraged, the policy should also indicate the counseling or documentation that will occur if employees violate the policy. The policy might also be limited to supervisor/subordinate dating, or allow dating between co-workers who do not work alongside one another. In addition, any policy that prohibits co-worker dating should have an exception for employees who are married to one another.

Definitions: A "no dating" policy must describe what "dating" is. For example, employees often go to lunch together, may go out for a happy hour drink, or may attend a BBQ or picnic with one another. The policy should define if and when these activities are to be considered "dating."

Public & "Just Cause" Employers: A governmental entity or a company with a "just cause" termination policy must approach no dating policies with great care. There are greater questions of invasion of privacy for governmental employers and employers who must prove "just cause" for termination.

Flexibility: Consider how flexible your policy should be. A rigid zero tolerance policy may result in the loss of two very good employees who fall in love with each other. However, any policy that allows too much case-by-case discretion exposes the employer to discrimination claims.

Business Necessity: Think about your business justification for imposing a consensual relationship policy. How have consensual relationships been handled in the past? Are any management employees involved in consensual relationships? Are there less intrusive means to achieve the employer's goals?

Penalties for Violations of Policy: A policy that prohibits a supervisor from dating a subordinate must also describe the penalty imposed if the policy is violated. Because men often hold more senior positions in a company, a policy that always penalizes the subordinate (e.g. by requiring termination or transfer) may create sexual discrimination liability. When enforcing a "no dating" policy, the employer must be careful to penalize both sexes equally. An employer who selectively enforces the policy, or enforces it more harshly against one sex compared to the other, may be liable for sexual discrimination.

Discriminatory Impact: Any "no dating" policy must also consider whether the policy will disadvantage certain employees. For example, in a company where the management is mostly male, a rigid policy that prohibits co-ed socialization will likely have a negative impact on the career opportunities of the women who are excluded.

Explanation & Documentation: Before an employer asks that a couple sign a "consensual relationship agreement," the employer should meet with both employees independently and determine whether there is any possibility that the agreement is not consensual. In particular, the employer should: 1) make sure that the employee understands the company's sexual harassment policy; 2) emphasize that the employee will not be retaliated against for reporting sexual harassment; 3) explain the procedure for reporting sexual harassment; and 4) document the employee's file with a summary of the interview, the information provided to the employee, and the reasons why the employee appears to consent to the relationship.

Consensual relationship policies are an important tool in managing the risk of sexual harassment claims. However, they must be thoughtfully created and administered with care.