By Mark F. Kluger and William H. Healey
What do employment lawyers know about romance? Don’t answer that. We do know that office romances are at a ten year high according to CareerBuilder’s 2017 Harris Poll data with 41% of respondents admitting to more than just working with their co-workers. Not surprisingly, we are often asked what employers should do to control those extracurricular activities at work. Our advice is simple and practical.
Policies that outright prohibit office relationships are futile. Just remember what happened to Romeo and Juliet. Employers should not jump in front of Cupid’s arrow (because it might hurt), and anyway, employees will simply hide their relationship and lie if necessary. It is better to know and manage the situation. In addition, for you softies, 30% of those surveyed who had an office romance, married their co-worker and who would want to stand in the way of true love? Plus, it can be a win-win, as health insurance coverage for a husband/wife is less expensive than single coverage for two.
There are some guidelines worth implementing, however. Twenty nine percent (29%) of the survey respondents had a relationship with a superior and half of those had dated their immediate supervisor. That’s a code red for HR and employment lawyers. No good can come from that scenario for an employer. Most managers cannot objectively supervise and evaluate a direct report with whom they are romantically involved and even if they can, co-workers would not buy it. That can lead to resentment and morale problems not to mention legal claims by co-workers for sexual favoritism. If the relationship goes south, the subordinate employee can bring claims for quid pro quo sexual harassment (contending it was never consensual) or hostile work environment sexual harassment. Likewise, if that employee’s performance ratings decline after the relationship ends (even if for legitimate reasons), the compromised supervisor/former lover will have no credibility and the employer, therefore, will have a weak defense. The answer is simple: the romantic relationship can live, the reporting relationship cannot. It is important, however, to be sure that whatever the rearrangement is, it cannot appear to punish the subordinate employee.
Vault.com’s 2016 office romance survey found that 32% of workplace romances included some in-office naughty behavior and 5% of those respondents said they got caught. Public displays of affection in the workplace (even if consensual) can make others uncomfortable and be grounds for a hostile work environment sexual harassment claim by the witnesses. Employers should strictly enforce a no PDA at work policy.
So are workplace relationships generational? According to the Vault.com survey, 66% of boomers have had one (but we’ve been at it longer), 59% of Gen-Xers, and lagging behind are those 18 to 34 year olds at 44% (they must be doing that online dating thing). There are also significant distinctions based on industry with 61% in the hospitality industry admitting to a relationship with a co-worker (hmmm wonder why) and only 24% in the pharma and bio-tech industry (same question).
This is tricky and dangerous territory for employers. New or updated sexual harassment policies and training make an excellent Valentine’s Day gift!