Office Romance: Do You Need a Workplace Dating Policy?

by Anna A. Cohen

As the holiday season and the new year approach, many people are either looking for love or ending relationships. Many relationships begin and end in the workplace. A recent survey revealed that almost half of employees have been involved in an office romance, and 20 percent admit to having met their spouse or long-term significant other while at work. Yet nearly half of those employees reported that they didn’t know if their company had a policy on office romances.

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Potential legal liability
When office romances go well, they can lead to long-lasting relationships. But when love in the workplace goes sour, it may expose the company to potential legal liabilities. In most cases, relationships between coworkers don’t pose a threat to employers. Relationships between supervisors and subordinates do create problems, though. Other workers may claim that the subordinate employee received preferential treatment. For example, in 2007, a high-ranking executive at a major financial institution was forced to step down when it was discovered that he gave his girlfriend, another company employee, a pay raise.

A supervisor showing favoritism toward his girlfriend is the least of your potential problems, however. If a relationship between a supervisor and a subordinate or between coworkers ends on a sour note, one of the employees may claim that it wasn’t consensual, that he was sexually harassed, or that she was retaliated against if she receives a poor performance review from her former paramour. In 2008, more than 13,867 sexual harassment claims were filed with the Equal Employment Opportunity Commission (EEOC) .

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What should employers do?
Given those potential issues, what should employers do? Well, you have many options. You can implement a broad no-dating policy or an antinepotism policy, enforce a notification procedure, or simply do nothing at all. Another alternative is to require employees to execute “love contracts.” Employers also should check to see if there are any state laws that might apply.

Workplace dating policies
Some companies may conclude that an outright ban on office dating isn’t the right policy for them. If a total ban on office dating is contrary to your company’s culture, you have many other options to decrease your liability from office romances. Here’s a look at each of those options, along with their positive and negative aspects:

• Don’t maintain an office romance policy. Some employers opt to have no office romance policy, relying instead on their antiharassment and antidiscrimination policies to protect their employees and their own interests in the event of litigation. That option appears reasonable. Two decisions handed down in June 1998 by the U.S. Supreme Court held that an employer could be automatically liable for a supervisor’s sexual harassment of a subordinate. Under certain circumstances, however, you may escape liability if you can establish that (1) you had an effective policy prohibiting sexual harassment and (2) the employee unreasonably failed to take advantage of the policy. Moreover, an employee who feels she has been denied workplace opportunities because she has resisted pressure to have a romantic relationship with a supervisor (or a fellow employee) may complain to your equal employment opportunity (EEO) officer, who (at least in theory!) will promptly investigate and take the appropriate action.
• Maintain an antinepotism policy. Steering a middle course between having no office romance policies at all and implementing more sweeping no-dating policies, some employers have promulgated antinepotism policies, which prohibit spouses or relatives from working at the same company or more typically prevent employees from supervising or directing coworkers related to them by blood or marriage. Antinepotism policies may reduce problems created by employees’ perceptions of favoritism or from employees bringing marital discord into the workplace. But they’re of little use in addressing relationships between employees who aren’t married or otherwise related. Further, antinepotism policies that prohibit the employment of wives, but not husbands (or husbands, not wives), are likely to run afoul of the prohibitions on sex discrimination contained in Title VII of the Civil Rights Act of 1964. (HR Hero Line: Nepotism and its dangers in the workplace)
• Implement a no-dating policy. Sometimes called antifraternization policies, no-dating policies frequently struggle to define the conduct they seek to proscribe. How can you describe the behavior you want to forbid? Does your policy restrict dating, socializing, relationships, romantic involvement, or something else? How should those terms be defined? Moreover, it’s unclear how no-dating policies will be received by courts.
• Create notification policies. You may want to require employees to report their decision to enter into a consensual romantic relationship to a designated company representative (for example, your EEO officer). That way, you could be protected from later allegations of sexual harassment and be able to respond in an informed manner to complaints of discrimination or favoritism by employees who work with either person in the relationship. A notification policy would require the dating employees to notify you if their relationship ends. Although this type of policy may be criticized as intrusive, it’s less intrusive than a no-dating policy while still allowing you some opportunity to head off workplace problems before they spin out of control. To avoid violating employees’ privacy, make sure your representatives understand they can’t disclose the existence of the relationship to anyone unless it’s necessary to respond to complaints about discrimination or other unlawful conduct by the employees who are dating.
• Require love contracts. Otherwise known as a consensual relationship agreement, a love contract will confirm that a relationship is voluntary, inform the parties of your sexual harassment policy and how to report any complaints, and outline expected behavior, such as refraining from displays of affection at work or retaliation if the relationship ends. To date, the validity of love contracts hasn’t been tested in court. To prevent a claim that employees were coerced into signing a love contract, ensure they consult an attorney first.

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Reduce your liability
Regardless of the policy your company chooses to implement, you can take a few simple steps to reduce your potential liability:

• Train supervisors and managers to avoid workplace romances with their subordinates and to report any inappropriate behavior.
• Draft and disseminate an antiharassment policy with a procedure for reporting complaints.
• If a relationship develops between a supervisor and his subordinate, transfer one of them if you can — preferably the supervisor — so there isn’t a direct reporting relationship.