Dealing with workplace romances, very carefully

Workplace romantics are unavoidable. Why? Likely because we spend nearly one-third of our adult lives at work.

However, in this day and age of #MeToo, with massive jury verdicts and settlements for alleged sexual harassment and career-ending public allegations of sexual misconduct, what should an employer do when faced with an office romance?

Power imbalance

There are several legal perils associated with workplace romances and dating in the workplace. The most legally significant factor is the “chain of command” or imbalance of power issue.

If a supervisor is dating a subordinate, there is always the risk of a “soured romance,” where the subordinate could claim the supervisor coerced them into the relationship. Given the state of the law and public mood, this can be a very costly lawsuit or settlement.

The situation also could lead to retaliation claims if the subordinate employee is given poor performance reviews, disciplined, transferred or fired after the relationship ends.

Additionally, when there is a power imbalance in a workplace relationship, co-workers outside the relationship may claim illegal discrimination because of favoritism shown to the subordinate employee in the relationship.

Finally, even if you sidestep all of these legal land mines, the relationship generally may disrupt the workplace or cause morale to suffer.

‘Love contracts’

What is an employer to do? The good news is an employer has several choices.

One approach requires employees to report workplace relationships, sign an agreement stating that the relationship is consensual, sometimes referred to as a “love contract” by some employment attorneys (not me), and confirm that they will follow the company’s anti-harassment and anti-discrimination policies.

Some “consensual relationship contracts” also stipulate that the two employees in the relationship agree not to engage in certain behaviors, such as public displays of affection in the workplace or workplace retaliation if a relationship ends.

There can be a change in reporting requirements or even a duty to report the relationship has ended. However, because this method requires employees to report their romances to management, employees having an extramarital affair may be unlikely or unwilling to follow such a policy.

Policies

An employer also can implement a policy prohibiting dating within the chain of command. While this resolves the power imbalance issue, it raises all sorts of other related issues. Those issues include whether the employer will have to “grandfather” in any existing relationships and whether one of the parties will have to resign and leave the company.

Also, an employer could rely solely on its anti-harassment, anti-discrimination and anti-retaliation policies. Such policies prohibit sexual harassment, discrimination and retaliation, and encourage employees to come forward with complaints.

If an office romance does lead to alleged discrimination, harassment or retaliation, the employee must report the problem to the employer for resolution and allow the employer to investigate and take the appropriate remedial action. If an employer takes this path, the employer must be sure that its anti-discrimination/harassment/retaliation policies are accurate and complete and that they are routinely updated to ensure compliance with the law (a good practice for anyone, really!).

Be certain

Finally, and this may be more practical than actual legal advice for those embarking on an office relationship: Be certain.

Are the two of you merely bonding over an intense project requiring late night work or travel? Are you perhaps merely sharing frustration with your spouses or co-workers? Or do you have a connection that extends beyond the office?

While workplace romances can lead to a satisfying, long-term relationship, they also can lead to awkward or even unpleasant workplace situations for the two people involved, as well as co-workers and managers.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids. Comments: (319) 365-9101; wstone@lynchdallas.com