Prevent Peril from Office Romance

It’s the season of cardboard cupid decorations festooning cubicles and desks sporting little bowls of heart-shaped candies inscribed with messages such as, “Be Mine,” and “Love.” Valentine’s Day can provide a fun break from winter blahs around the office, but it’s also a reminder of a potential legal hazard — office romance.

Employers struggle to balance a desire to stay out of employees’ personal business with the need to keep legal risks in check. When coworkers enter relationships — particularly when one is a boss — sexual harassment claims can be an unintended consequence.

Learn more about the dangers of sexual harassment in the workplace in the HR Guide to Employment Law

An article by attorneys Mark Adams and Jennifer Anderson of Jones Walker in the August 2011 Louisiana Employment Law Letter addresses the issue of what to do when two employees enter a relationship.

“Your obligation to stop harassment is clear,” Adams and Anderson write. “You have no responsibility to seek out a dating couple on a daily basis and inquire about the status of their relationship to determine if it’s still consensual. But the minute one of them indicates he wants the contact to stop and makes that known to the company, your duty to end what has arguably become sexual harassment begins and the liability meter starts ticking.”

In addition to the harassment that can result from a breakup, employers have to be concerned about real or perceived favoritism resulting from an office romance. “Sexual favoritism claims represent a type of sex discrimination stemming from one employee being treated unfavorably because she isn’t in a personal relationship with the supervisor,” Anderson and Adams added. “In other words, the employee who’s involved with the supervisor receives favorable treatment to the detriment of other employees in the department.”

Some employers implement strict no-fraternization policies, others require employees to report a relationship with a coworker to management, and others leave the issue out of the employee handbook altogether.

The decision on whether to have a policy depends on several factors. Allison B. Williams of Steptoe & Johnson in Bridgeport, West Virginia, wrote on the subject in the February 2012 West Virginia Employment Law Letter. “If you don’t have an ‘office dating policy,’ you might consider whether one would be appropriate for your workplace based on your company’s size, structure, and environment and whether you would be comfortable imposing discipline for violations,” she writes. “Remember, if you decide to implement an office dating policy, you must enforce the policy and impose discipline on each member of the couple equally and without exception.”

Williams also reminds employers to be ready if the couple breaks up. “You will want to counsel the employees on your sexual harassment policy again and include in their personnel files a note saying that the relationship has ended and they have both been counseled on the sexual harassment policy,” she writes.

Despite an employer’s best efforts harassment still sometimes occurs, and an employer will have a strong defense if it has given thought to the following questions outlined in a February 2012 Vermont Employment Law Letter article by Sophie E. Zdatny of Dinse, Knapp & McAndrew, P.C. in Burlington, Vermont:

• Does the sexual harassment policy provide a clear complaint mechanism?
• Are new hires and existing employees adequately trained on the sexual harassment policy?
• Have managers been provided with effective training on what constitutes sexual harassment and how the complaint procedure is to work?
• Are claims promptly and thoroughly investigated?
• Has effective corrective action been taken to address previous incidents of sexual harassment, and has the action prevented future incidents?

Read about examples of sexual harassment that made it to the courts

The decision on whether to try to lower the sexual harassment risk through policy making or to remain silent on the issue of office romance has to be made on a case-by-case basis. But all employers need to know their responsibility — and that they can’t think they’re immune to risk.

A 2011 Vault.com survey showed that 59 percent of respondents said they had participated in an office romance. Twenty-six percent of those reporting they had engaged in an office romance said that they had dated a subordinate, and 18 percent said they had dated their supervisor.

When asked if they ever felt that a coworker gained a professional advantage because of a romantic relationship with a coworker or superior, 38 percent of those who had engaged in an office romance said yes. Thirty-one percent of those respondents said they had felt uncomfortable because of coworkers’ intraoffice romantic relationships.

A 2011 poll from CareerBuilder found a smaller number of workers saying they had dated a coworker — approximately 40 percent. Eighteen percent in the CareerBuilder survey reported dating coworkers at least twice in their career. Thirty percent reported that they went on to marry a person they dated in the office.