Workplace Romances: Fine ‘Til the Breakup

With Valentine’s Day in the air, thoughts naturally turn to the workplace romance: it’s cute, it’s touching … and it’s dangerous. Most such romances eventually break up, and then show their dark side: charges of harassment, hostile environment, favoritism, and retaliation.

What do Bill Clinton, Bill O’Reilly, presidential advisor Paul Wolfowitz, and space shuttle astronaut Lisa Nowak have in common? They’re intelligent, successful people who suffered from a workplace romance gone bad, says attorney Joseph L. Beachboard. Beachboard is a shareholder in the Los Angeles office of law firm Ogletree Deakins, Nash, Smoak & Stewart. His remarks appeared in a recent issue of the HR Manager’s Legal Reporter.

How About Just Forbidding Romance in the Workplace?

Workplace romances have probably been around as long as workplaces, and it’s likely they’ve caused problems since then. For a while, says Beachboard, employers tried nonfraternization policies, but few paid any attention. So now, management has had to get back in and try to, well, manage the situation.

Why are workplace romances on the rise? It’s no mystery, says Beachboard. First, people are marrying later and working longer hours. That keeps available people in close proximity more of the time. Second, work is a “safe” place to meet people—you get to know them over time and, at the least, you know they have a job and the wherewithal to show up for it.

Surveys suggest that up to half the people at work have relationships with co-workers, of which some 20 percent became permanent. That’s nice, says Beachboard, but it also means that means that four out of five relationships end. That adds up to a lot of discomfort in the workplace.

Workplace Romance Lawsuits

The attorney names three particular types of lawsuits emanating from these liaisons: Participant claims (typically sexual harassment or retaliation claims that arise after a relationship ends); paramour favoritism claims (from third parties who claim that they were impacted by the relationship); and spurned lover claims (which also may be harassment or retaliation claims).

How to Avoid Claims

Beachboard recommends the following for employers who want to get out in front of possible claims related to workplace romance.

1. Draft realistic policies, and apply them uniformly A formal policy should:

• Prohibit relationships that create an actual or perceived conflict of interest.
• Require people to behave in a professional manner, and keep their personal relationships out of the work environment.
• Clearly state the potential consequences for violating the policy.

2. Conduct regular training Training is a fairly inexpensive way for a company to reduce its exposure, says Beachboard, because one of the first requests plaintiffs’ counsel make in sex harassment cases is for documents concerning the training the company provided to the alleged harasser. Further, companies that can produce evidence of yearly training and a well-disseminated antiharassment policy are in a position to establish an “affirmative defense.”

3. Limit involvement with a couple’s problems Employers should concern themselves with the potential or actual effect of a relationship on the job or organization, not with what passes between the people involved.

4. Prohibit manager/subordinate relationships If one occurs, strongly discourage the relationship and advise the employees that one will have to move to a different position if available or be terminated if not.

5. Advise employees that the company monitors communications Let employees know that the organization monitors all e-mail correspondence and other forms of communication utilizing company equipment.

6. Consider establishing a hotline Courts examining the reasonableness of an employee’s response to alleged harassment or retaliation usually find it unreasonable for an employee not to take advantage of an anonymous toll-free reporting service. These hotlines all but dispense with claims that workers were unable or afraid to report harassment, discrimination, or retaliation.

7. Document everything As with most HR activities, says Beachboard, documentation is the key to preventing lawsuits and, failing that, to winning them.