Legal issues associated with dating in the workplace

by Kylie Crawford TenBrook

According to a 2012 Stanford University sociology study, 10 percent of people meet their spouses at work. Coworker dating is common. Unfortunately, not all relationships end well, and when they don’t, employers can face harassment and retaliation claims. Although most businesses have no rules about office relationships, now may be the time—while the office is awash in hearts and the fragrance of flowers—to decide what’s best for your workplace.

Chain-of-command issues
One of the most troubling scenarios of dating in the workplace involves a relationship that forms between a supervisor and a subordinate. No matter how consensual the relationship may seem, there is always a chance that the subordinate will later claim that he was coerced into the relationship by the supervisor.

Given the power a supervisor wields over subordinates, it could be very difficult for the employer to establish anything to the contrary. A subordinate also could claim retaliation if he is given a poor performance review after the relationship ends. The situation is also likely to lead to claims of favoritism by other employees—which could have their own legal bases but, in any event, will affect morale.

To policy or not to policy
I’m often asked whether a company should have a policy against dating in the workplace. My response is that you should only enact policies you intend to enforce consistently.

Let’s first consider a total ban on fraternization in the workplace (assuming you can clearly define “fraternization”). If two lower-level, high-performing employees in different departments begin dating, and you find out about it, are you going to require them to stop dating? Are you going to monitor them to ensure compliance? If they don’t stop dating, are you going to fire both of them? Because it has to be both of them, or you’ll open yourself up to disparate treatment claims. Tempted to make an exception? You can’t, or again, you’ll open yourself up to claims in future situations.

There are a few less restrictive options, but they aren’t without their own issues. A “love contract” policy requires employees to report workplace relationships and sign an agreement stating that the relationship is consensual and they will follow the company’s antiharassment and antidiscrimination policies. It also outlines the conduct expected upon termination of the relationship. This approach doesn’t necessarily do away with coercion claims. Some employees also will be unlikely to follow the policy—for example, those having an extramarital affair.

Before implementing a policy prohibiting dating within the chain of command, you must decide whether you will rearrange reporting relationships to accommodate dating employees or require one of the parties to step down or leave the company. And before implementing a notification policy, you must decide on the ramifications for failing to report. Moreover, your policies and practices must be consistently enforced and must not appear to have a disparate impact on any protected classification.

Finally, you could do nothing and rely solely on your antiharassment and antidiscrimination policies. If you take this approach, conduct regular training on those policies and promote a culture of compliance.

Love don’t cost a thing . . .until it costs too much
Anyone in a high-level position is held to a much higher standard than other employees. Regardless of what your company policies say and no matter how consensual the relationship seems, if the relationship goes south, chances are, your company will conduct a quick cost-benefit analysis and determine that it’s less costly to get rid of you than keep you. As a result, if you decide to enter into a dating relationship in the workplace, recognize the impact your conduct could have on the company and your professional future.

Bottom line
Dating relationships between employees are inevitable. We all know couples who met at work. Some relationships work out, and the couple lives happily ever after. Other employees are not so fortunate. One thing is certain: Workplace relationships bring the potential for employer liability.

Kylie Crawford TenBrook serves as corporate counsel for Best Western International, Inc., in Arizona. Previously, she practiced labor and employment law exclusively.