Risky Business: Addressing the Legal Risks of Workplace Romance

Valentine’s Day is an appropriate time to think about how to deal effectively with workplace romance. 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 she quits … but then realizes how much she misses him and accepts his attempts to reunite;
• “Working Girl” Tess McGill (Melanie Griffith) falling head over heels for businessman Jack Trainer (Harrison Ford) who is in a romantic relationship with McGill’s boss (Sigourney Weaver); McGill’s persistence finally results in Trainer realizing his true feelings for her, and she ends up working in his company in a management role.

Relevant Statistics

While real-life workplace situations rarely turn out so smoothly (although from a gender equity perspective, it’s questionable as to whether those movie scenarios actually can be considered to have turned out “smoothly”), statistics show that the public generally accepts consensual workplace romances. However, increased social acceptance has not translated into lowered legal risk for companies, large or small, especially in the #MeToo era. Given this situation, employers face an ever-increasing challenge to accommodate the existing social landscape within the office environment. How can a company handle the issue of romance in the workplace? The answer may involve a practical strategy: rather than prevent workplace romance, the key may be to address its reality and to educate managers on the legal ramifications of romances “gone bad.”

Start with this fact: according to one survey, 40 percent of the employees surveyed reported having been involved in an office romance at some point in their careers. In the same survey, over 70 percent of organizations reported that they had no formal policies—written or verbal—to address workplace romance.

Workplace Policies

What are the elements of an effective “workplace romance” policy? Employers may want to consider the following:

• Prohibiting relationships that create an actual or perceived conflict of interest. Employers can take steps to prohibit or at least restrict relationships between supervisors and subordinates. Employers may want to consider having policies that set forth the conduct they expect from their managers. At a minimum, employers may want to consider requiring managers to disclose relationships with subordinates, taking steps to eliminate direct reporting relationships between the employees involved, and ensuring supervisors are not in positions to advance or impede paramours’ careers.
• Requiring professional behavior. This may mean keeping personal relationships—and the consequences of those relationships—out of the work environment and acting consistently with the policy outlined above.
• Articulating the potential consequences for violating the policy. Without parameters and disciplinary consequences, the policy may become a “check-the-box” measure.

Conducting Training

Training can be an effective way to reduce legal risk. Companies that conduct regular trainings and disseminate anti-harassment policies may be in a position to show they exercised reasonable care to prevent or correct alleged harassing behavior. Reasonable policies and genuine attempts to resolve issues as they arise are also helpful.

Confirming That Reported Relationships Are Consensual

Employers addressing personal relationships between employees may want to limit the issues to those that directly affect the jobs or the company. Such conversations, though sometimes difficult, may be helpful in avoiding risk. In separate conversations with each individual, an employer may want to address:

• the company’s sexual harassment policy and other applicable policies, and obtain the parties’ written acknowledgement of having received and read those policies;
• the importance of professionalism at all work-related activities;
• issues of favoritism or conflicts of interest; and
• the reporting of any harassing conduct.

Conclusion

In today’s legal environment, romantic relationships in the workplace are potentially problematic, not only for the parties involved in a relationship, but also for coworkers and the company at large. Understanding and dealing with the issues, as well as implementing policies and procedures, can reduce the potential negative consequences of these circumstances.