When Cupid’s arrows wound the company, is it time for a dating policy?

OFFICE ROMANCE

February 2018
Ryan B. Frazier
Utah Employment Law Letter

Valentine’s Day is the time of the year we associate with romance and dating. The amount of time coworkers spend to­gether increases the likelihood that romance could blossom in the workplace. However, the office romantic relationship can be a troublesome weed that employers need to uproot instead of a beautiful flower.

Such relationships can be a distraction, leading to gossip, discord among employees, or interoffice jealousies. Further, when relationships don’t end well, they can result in harass­ment or retaliation claims. Plus, there’s the issue of managers attempting to date those they supervise, which creates a signifi­cant risk of favoritism—or at least the perception of favoritism.

Employers have taken different approaches to addressing dating and relationships in the workplace. Some enact policies prohibiting some relationships, whiles others tend to ignore them. This article discusses the legal issues of dating at work and whether you should decide if it’s time to implement a rela­tionship policy.

#MeToo

Sexual harassment has become one of the hot top­ics for employers. Recent high-profile sexual harassment cases have empowered victims of illegal and inappro­priate sexual harassment to come forward. Employers are concerned about how claims may affect them and their businesses.

Unwelcome sexual advances, requests for sexual favors, unwanted physical touching or contacts, and certain verbal remarks or jokes of a sexual nature can be sexual harassment. Of course, such harassment is il­legal under both state and federal law. And it can result in significant liability to you and distractions from fo­cusing on your business.

In most cases, sexual conduct, remarks, or advances in the workplace are illegal only when they’re unwel­come. However, maybe you should be a little more con­cerned about dating relationships in the workplace. In some situations, courts have ruled that completely con­sensual relationships can rise to the level of a hostile work environment.

Dating creates unique issues that can lead to sexual harassment claims and allegations. First, a public dis­play of affection (PDA) between a couple could be offen­sive to other employees or customers. Intimate or sexual touching in front of others may be unwelcome to those who witness it. Even kissing, hugging, or sexually sug­gestive remarks between a couple can offend others. If such conduct is sufficiently pervasive and offensive, the workplace could be deemed a hostile work environment.

Second, there’s always the risk that initially con­sensual situations can become unwelcome or coercive. Dating partners may have different views of their rela­tionship and have very different expectations of where it’s headed. This is especially troubling if the relation­ship involves a supervisor and a subordinate. It may evolve to a point where the supervisor communicates expectations for the relationship that the other per­ceives as coercive.

Finally, even unwanted requests for dates could—in certain circumstances—rise to the level of sexual harassment. In dating relationships, no still means no. When an invitation to go on a date is rejected, the em­ployee should not continue to put pressure on the co­worker who rejected him. This is particularly problem­atic when a supervisor repeatedly and unsuccessfully pursues someone over whom he has authority. In some cases, this can constitute a hostile work environment and sexual harassment—even if the overtures are only for dates and no one is sexually propositioned! The em­ployee may feel forced to indulge the request out of fear of reprisal or that she may not receive some employment perk or benefit.

Supervisor-subordinate dating

One of the largest dating issues in the workplace in­volves romantic relationships between a supervisor and a subordinate. Foremost, there’s a significant risk of a quid pro quo sexual harassment claim in such situations.

Quid pro quo sexual harassment occurs when a per­son with authority over someone else offers or hints that an employment benefit, raise, promotion, or other em­ployment perk is tied to the demand for a sexual favor. This risk increases when the relationship comes to an end—particularly if it ends badly. It’s difficult for the su­pervisor in that situation to discipline or give a poor per­formance rating to the former partner. Even if the rela­tionship is consensual, the subordinate could later claim that she was forced into it by the supervisor. This gives the subordinate a certain amount of leverage and control over the supervisor.

For an employer, it’s difficult to prove that a relation­ship was, in fact, consensual. A retail client of mine faced a sexual harassment claim because the in-store manager had engaged in sexual activities in the workplace. The employee claimed the activities were forced and unwel­come, while the manager claimed that the relationship was consensual. This was a classic “he-said, she-said” situation, and the credibility of the witnesses was going to have to be determined by a jury.

But sexual harassment isn’t the only issue when su­pervisors and subordinates date. The supervisor may favor or treat the subordinate preferentially. Raises, pro­motions, and other benefits may be granted simply be­cause she is the supervisor’s “favorite.” Even if that isn’t actually the case, other employees tend to believe it. This can have a significant impact on employee morale and attitudes. Besides, the employees not receiving favored treatment could assert a sexual harassment claim that they aren’t receiving the same benefits because they don’t have a romantic relationship with the boss.

Dating policies

For these and many other reasons, employers fre­quently enact policies that prohibit romantic relation­ships between supervisors and subordinates. In some cases, employers implement outright bans on coworker dating. Such policies, while advisable in some cases, can be unpopular among employees. Further, they are dif­ficult to implement because defining the type of conduct that is prohibited can be difficult.

Another approach—rather than attempting to pro­hibit dating—would be to require dating employees to notify managers both at the start and at the end of the relationship. The reason for such a policy is to provide a line of defense against a sexual harassment claim when someone alleges that the relationship wasn’t consensual.

Other employers have established antinepotism policies. Such policies are usually directed only to fam­ily members and are used to prevent spouses and other relatives from working in the same workplace. These policies can be effective in addressing some claims of favoritism, but they do little to solve the problems associ­ated with dating and sexual harassment.

What should employers do?

Romantic relationships in the workplace aren’t all hearts and roses. They can actually be a headache for management. Given the risks of sexual harassment and the impact on employee morale, you need to decide how to address romance in the workplace. There’s no right or wrong answer for each employer or each situation.

In most cases, it’s advisable to implement and en­force at least some minimal policies addressing dating and romance. Which policies you select depends on your workforce and the prevalence of such relation­ships. At the very least, you need to have antidiscrimi­nation, antiharassment, and antiretaliation policies in place that comport with the current state of the law. Consult with legal counsel about which policies to im­plement and enforce.

Regardless, remember that it’s usually easier to ban romantic relationships before they become a problem. How do you force couples to break up based on new policies? That’s also likely to foment distrust and dissat­isfaction among employees in happy, consensual dating relationships in the workplace. They may suspect that they’re being targeted and that the new policy is simply an attempt to cover up something more nefarious.

But even when employers have such policies, they aren’t always enforced. Having policies “on the books” but turning a blind eye to violations can be just as bad as—or in some cases worse thannot having any pol­icy. Once a policy has been created, make sure your managers and decision makers don’t ignore violations. Otherwise, you may be facing the very claim you hoped to avoid when you enacted the policy.

You can contact the author at rfrazier@kmclaw.com or (801) 323-5933.

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