Valentine’s Day is an appropriate time to think about how to deal effectively with workplace romances. Real-life workplaces rarely reflect movie scenarios. Consider:
- Mel Gibson’s character whose accidental electrocution in “What Women Want” allows him to understand the innermost thoughts of his female coworker and family members, and whose epiphany allows him to “capture” the woman of his dreams – even while plotting to have her fired;
- Hugh Grant’s character in “Two Weeks Notice” who shamelessly uses the legal skills of his in-house attorney, played by Sandra Bullock, to build his real estate empire, until Bullock quits . . . but then realizes how much she misses him and accepts his attempts to reunite;
- “Working Girl” Melanie Griffith falling head over heels for Harrison Ford, who plays a businessman in a romantic relationship with Griffith’s boss (Sigourney Weaver); Griffith’s persistence and – let’s face it – scheming finally result in Ford realizing his true feelings for her, and she ends up working in his company in a management role.
The Relevant Statistics:
While real-life workplace situations rarely turn out so smoothly (if any of those can be considered to have turned out “smoothly”. . . ), statistics show that the public generally accepts consensual workplace romances. However, that increased social acceptance has not translated into lowered legal risk for companies, large or small, especially in this era of “me, too.” Given this conundrum, employers face an ever-increasing challenge to accommodate the existing social landscape within the office environment. The question then becomes: how should a company handle the issue of romance in the workplace? The answer involves a specific strategy: rather than preventing workplace romances, the key is to educate managers about the legal ramifications of romances “gone bad.”
Start with this fact: according to one survey conducted by the Society for Human Resource Management (www.SHRM.org), 40% of the employees surveyed reported being involved in an office romance at some point in their careers. In the same survey, over 70% of organizations reported that they had no formal policies – either written or verbal – to address workplace romances. In the current era, this lack is a recipe for potential disaster.
What are the primary elements of an effective “workplace romance” policy? Here are the three critical provisions that should be included:
- Prohibit relationships that create an actual or perceived conflict of interest. Employers should take steps to prohibit or at least control relationships between supervisors and subordinates. All employers should have policies that set forth the conduct they expect from their managers. At a minimum, employers should require managers to disclose relationships with subordinates, take steps to ensure any direct reporting relationship between the employees involved is eliminated, and make certain the supervisor is not in a position to advance the paramour’s career. To do otherwise essentially invites a lawsuit.
- Require people to behave in a professional manner. This means keeping personal relationships – and the consequences of those relationships – out of the work environment, and acting consistently with the policy outlined above.
- Clearly state the potential consequences for violating the policy. Without genuine parameters and disciplinary consequences, the policy is just a “check-the-box” and will not have any credibility with courts that may have to review legal claims based on workplace romance situations.
Conduct Regular Training:
Training is an effective way for a company to reduce legal risk. One of the first requests often made by plaintiff’s counsel in sex harassment cases is for documents establishing the company’s sex harassment policy, the mechanism for reporting complaints, and all documentation establishing training the company provided to the alleged harasser.
Companies that can produce evidence of yearly training and a well-disseminated anti-harassment policy are in a position to establish certain available affirmative defenses that can assist in insulating companies from liability, if the employer can prove it exercised reasonable care to prevent or correct any sexually harassing behavior and the employee unreasonably failed to take advantage of the reporting opportunities offered. Training is an effective and documented way to do that. (That said, training should not be considered as a replacement for effective policies and genuine attempts to resolve issues as they arise.)
Confirm That Reported Relationships are Truly Consensual:
Obviously, any employer involvement with personal relationships between employees should be limited to issues that directly affect the jobs or the company – these are difficult conversations to raise, but must be conducted to avoid risk. Employers should concern themselves with the potential or actual effect of a relationship, not the motivation or otherwise private lives of those involved in it. In separate conversations with each individual involved in a workplace relationship, an employer should:
- Advise the parties of the company’s sexual harassment and other applicable policies and have them acknowledge (in writing) receiving and reading those policies;
- Stress the importance of professionalism at all work-related activities;
- Advise against favoritism or a conflict of interest by supervisory party; and
- If the relationship ends, advise the parties to report any harassing conduct.
In today’s legal environment, romantic relationships in the workplace can create the potential for disaster, not only for the parties involved in the relationship but also for coworkers and the company at large. Understanding and dealing with the many issues surrounding the phenomenon, and implementing policies and procedures around the issue can reduce the negative consequences of these circumstances.