Office romances are one of the biggest legal risks managers can take, says attorney Jonathan Segal. Even when relationships appear to be totally consensual, they’re dangerous from a legal standpoint.
Segal is a partner at the law firm Duane Morris LLP. His remarks came at a recent SHRM conference.
Segal poses a number of situations and shows how they can be problematic, even though they appear to be benign.
Office Romance Hypotheticals
Example 1. A supervisor and subordinate fall in love and live happily ever after. No harassment there, says Segal. (Although there could be third-party concerns if co-workers believe that the in-love subordinate is getting special treatment.)
Example 2. The supervisor asks the subordinate out, the subordinate says no, and the supervisor says, “That’s cool,” and the two work together synergistically and effectively and stay friends ever after. No harassment there.
“But now let’s leave fiction,” Segal says.
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Example 3. In the real world, when a supervisor asks a subordinate out, and the subordinate says, “No,” the supervisor says, “Oh, come on—the way you look at me, let’s go out.” Is there a problem now? Segal asks. Yes, because “No means No.”
The issue here is authority. The subordinate is concerned about the authority the supervisor has over him or her. The subordinate knows that the supervisor determines his or her economic destiny.
Here’s what actually happens, says Segal.
Example 4. The supervisor asks the subordinate out. The subordinate thinks, “You repulse me. I’d rather swing from a meat hook with pins in my eyes.” But the subordinate says, “I’m busy.”
The supervisor hears, “She wants me. She wants to go out—it’s just that she has other plans.” So the supervisor asks again. The subordinate is still busy.
Eventually (we hope) the supervisor figures it out. But the damage is done. The next time something adverse happens to the subordinate, he or she can claim, “It’s retaliation for not going out with my supervisor.”
Example 5. The supervisor asks a subordinate out on a date, the subordinate says no, and the supervisor never asks again.
There’s no problem, says Segal … until:
- The subordinate doesn’t get a raise.
- The subordinate is fired.
- The subordinate is demoted.
Whatever reasoning is advanced for the adverse action, the subordinate may claim that “The real reason was because I said no to the request for a date. It’s quid pro quo harassment.”
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Example 6. The supervisor asks a subordinate for a date. The subordinate says yes, they fall in love, and they know it will last forever. Any problem?
No, until it falls apart, and they hate each other’s guts, Segal says. But say they do stay in love. There’s still the potential for a hostile environment claim if the behavior creates an uncomfortable environment.
Bottom line, says Segal, when a supervisor asks a subordinate for a date, there’s a risk. Just by asking, you’re giving the subordinate a club that he or she may later use against you.
To avoid legal troubles, says Segal, at a bare minimum:
- Educate managers on risks they take by attempting to date or dating employees.
- Develop some sort of reporting procedure—if you wish to date, talk to HR.
- Hope they get married. Once the couple goes down the aisle, the risks are a lot lower. It’s hard to claim unwelcome conduct after you’re married.
- Develop a conflict of interest policy. Officers who have direct or indirect influence can’t date or attempt to date someone on their organization chart.
What you don’t want to do is do nothing, says Segal. To greenlight workplace dating is to expose your organization to substantial risk.
In tomorrow’s CED, three women and a man discuss sex. Stay tuned.
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It’s amazing how many employers just put their head in the sand on this issue. But it’s still true that lots of people meet their partners in the workplace, so it’s just foolish to ignore it.
It’s amazing how many employers just put their head in the sand on this issue. But it’s still true that lots of people meet their partners in the workplace, so it’s just foolish to ignore it.