We have an issue around employee dating. We tried a no-dating policy, but we can’t seem to put any teeth into it. When we confront two employees we think are dating, they say, “Hey, we’re not dating—a few of us like to get together after work for drinks.” And another couple wouldn’t answer because “It’s none of your business what we do off duty.” Meanwhile, now we’ve got this new California Supreme Court decision that says even the uninvolved can sue. In a nutshell, what’s a good policy about dating for today’s workplace? — P.G. in Escondido
Diana Gregory of Administaff says, “Your question is excellent and timely! As you indicate, the recent Miller v. Department of Corrections1 ruling concluded that employees who were not the target of a supervisor’s ‘sexual interest’ could bring a sexual harassment lawsuit based on a ‘hostile environment.’ In light of this case, employers can expect an increased number of harassment claims.
Yet, when employers discipline employees for violating policies limiting employees’ and supervisors’ personal relationships, the employees turn around and file lawsuits claiming violations of privacy, public policy, and wrongful discharge. So the question for employers is, can—or should—you have an effective policy on office romance?
Face it, folks, relationships are going to happen! Although office amours are not a new phenomenon, current workplace trends tend to encourage employees to find romance at work. Employees work long hours—where else are they going to meet people? Companies encourage team efforts and tend to aggregate work groups on projects. Casual attire is the norm, leading perhaps to a more relaxed environment. Also, thanks to technology, work is now often conducted at social, off-site locations like Starbuck’s.
The Case for a Policy
Taking all this into account, you will undoubtedly face employees and managers having affairs, other employees who aren’t happy about it, and the associated negative effects on morale and productivity. But don’t lose hope. A February 2004 court ruling in Barbee v. Household Automotive Finance Corporation (HAFC)2 suggests that a carefully worded and consistently enforced policy on nonfraternization may reduce employer liability.
Barbee, the plaintiff in this case, was a national sales manager for HAFC who had a relationship with a salesperson in his chain of command. The affair was discovered, and Barbee was terminated when he refused to either end the affair or resign. Barbee sued for invasion of privacy and wrongful discharge in violation of public policy. The appeals court upheld a trial court’s ruling in favor of HAFC, noting that Barbee had no reasonable expectation of privacy, based on ‘notice through HAFC’s written conflict of interest policy that relationships between supervisors and subordinates might be subject to monitoring.’
Barbee’s claim that his discharge violated public policy was based on a California Labor Code provision that prohibits an employer from taking adverse action against an employee for engaging in lawful conduct during nonworking hours. But the court found that supervisors don’t have a reasonable expectation of privacy in pursuing an intimate relationship with employees who work for them. That’s because employers have legitimate interests in avoiding conflicts of interest between work-related and family-related obligations, in reducing favoritism issues, and in preventing family conflicts from affecting the workplace.
In this case and others, California courts have affirmed employers’ legitimate interests in preventing conflicts of interest, favoritism, and sexual harassment. The Miller case actually reinforces the need to prevent supervisors from creating an atmosphere of ‘sexual favoritism.’ While Miller targets supervisor/subordinate relationships rather than relationships between coworkers, it does imply that discouraging co-worker dating is a legitimate practice in an employer’s attempt to maintain a workplace free of sexual harassment.
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Policy Guidelines
In developing your policy, the key is not to try to prohibit all dating, which could violate state prohibitions on interfering with employees’ legal off-duty conduct, but to discourage it at all levels. If you clearly state the reasons your company discourages dating, impose strict limitations on supervisors, and clearly state the consequences, employees will be on notice of your company culture in this area. Additionally, employees with their eye on a management position will be aware that any intimate relationship they have with a co-worker could pose a conflict of interest if they pursue promotion. As always, consistent application of the policy is a must.
Gregory offers these suggestions for writing your policy:
- Make an opening statement about why the company needs to address this seemingly private matter of personal relationships. For example: “In the interest of avoiding actual or potential conflicts of interest, complaints of favoritism, possible sexual harassment, and potential dissension caused by romantic relationships between employees, and especially between supervisors and other employees, the company has established the following policy provisions.” You may also wish to include language similar to the following: “Peer dating, while not prohibited, is often perceived as unprofessional behavior by coworkers and can lead to awkward situations in the workplace. Keep in mind that relationships that do not begin or end with mutual consent can lead to sexual harassment complaints.”
- State what constitutes acceptable/unacceptable behavior. For example: “Employees are prohibited from engaging in physical contact that would in any way be deemed inappropriate by a reasonable person while anywhere on company premises, whether during working hours or not. Employee off-duty conduct is generally deemed private, as long as it is not detrimental to employee performance or the workplace environment. An exception to this is romantic or close personal relationships between supervisors and subordinates, which may constitute a conflict of interest.”
- Address how situations will be handled. This example is from HAFC’s policy: “If a consensual intimate relationship between a supervisor and any employee within that supervisor’s direct or indirect area of responsibility is desired, it is the supervisor’s responsibility to bring this matter to management’s attention for appropriate action (e.g., possible reassignment to avoid a conflict of interest).”
Another example: “Should a supervisor become personally involved with an employee within the ‘line of command,’ a conflict of interest could occur. Therefore, all such relationships must be disclosed to upper management to ensure that steps can be taken to avoid a problem. If potential issues are identified, the company will work with the parties involved to consider options for resolving the conflict.”
- State the consequences of not cooperating. For example: “Failure to work with the company to resolve a situation may ultimately be deemed insubordination and may result in disciplinary action up to and including termination of employment. Refusal to accept a transfer to a reasonable alternative position, if available, will be deemed a voluntary resignation.”
Diana Gregory is Senior Human Resources Specialist at the Walnut Creek office of Administaff, a Professional Employer Organization (PEO) and human resources outsourcing firm.
1 Miller v. Dept. of Corrections, Calif. Supreme Court No. S114097, 2005
2 Barbee v. Household Automotive Finance Corp., Calif. Court of Appeal (4th Dist.) No. D040421, 2003