Before you say, here these two go again trying to ruin Valentine’s Day (see Ho-Ho-Hold-Off-On The-Mistletoe-Safer-Holiday-Parties and Employers May Lose The Super Bowl Again! at http://klugerhealey.com/category/employment-law-alerts/), we do not recommend that employers try to prohibit office romances. For one, it would not work. Remember that whole Romeo and Juliet debacle? Also remember that romantic overtures at work are not sexual harassment if they are welcome. In fact, according to the Harris Poll, 31% of those who reported having a relationship with a co-worker ended up marrying them. Isn’t that nice? On the other hand, another 24% admitted to dating a married co-worker. Not so nice.
But, while not banning office romance, employers must establish parameters. For example, there are certain relationships that employers absolutely cannot tolerate. Allowing supervisors to date those they supervise is never good. Among those surveyed by Harris, 22% said they dated their boss and another 30% dated someone at a higher level. Even though such relationships are consensual, they can lead to claims of sexual favoritism by other employees who feel that the employee who wakes up next to the boss might (also) enjoy some work-related advantages. And we all know that even if the relationship ends amicably, there is no way that future performance evaluations will ever be credible, not to mention the possibility that a scorned lover could claim that the relationship was quid pro quo sexual harassment from the outset. Remember, 69% of those who reported dating a co-worker did not marry them.
Sexual harassment policies must address the issue by prohibiting supervisors from dating their direct reports. When this does happen, those involved must be separated, being careful not to seemingly punish either employee in the process. In addition, while this may not sound realistic, the policy should also require any employee engaged in a consensual relationship with a co-worker to notify the employer. The CareerBuilder survey revealed that 41% of those in a relationship with a co-worker kept it secret. By requiring employees to report the relationship, employers are far more likely to know (even if there is not full compliance) and be able to manage any potential problems. Although we used to scoff at the concept of a relationship contract, we have come to embrace it as a helpful defense for employers.
The relationship contract is a document that the involved employees must sign, acknowledging that the relationship is in fact consensual, and agreeing to abide by the sexual harassment policy, to be discrete in the workplace (that is, no PDA), and for the participants to notify management if the relationship ends. While we know that may sound over the top, there are benefits. The employer essentially locks the employees into an admission that the relationship is not the product of sexual harassment. That’s our warm fuzzy side. By requiring employees to let someone know if the relationship ends, if a scorned co-worker begins to act out, the burden is on the other employee to report the situation before the employer’s duty to intervene kicks in. Even though not flawless, the relationship contract gives employers another tool for controlling workplace romance and for those employees who are dating a co-worker, a potential gift: What better way to say “I love you!” than signing a relationship contract.