United States: The Times, They Are A-Changing:The Evolving Workplace Dating Policy

In the not too distant past, most employers adopted policies forbidding workplace relationships on the premise that such relationships were — intrinsically — inappropriate and against the employer’s interest. The evolving workplace, however, has led to an evolving view on the acceptability of interoffice romances. This shift in viewpoint has coincided with many employers’ electing to drop their anti-dating policies in their entirety. However, recent case law, particularly Miller v. Department of Corrections ¹, illustrates that this approach, while appearing more employee-friendly, increases the risks for employers and can set the stage for employee discontent.

In Miller, the California Supreme Court dealt with a particularly egregious set of facts in which female paramours (yes, plural) of a Department of Corrections’ manager were permitted to harass and bully other female employees who were not in relationships with the manager. Although state and federal courts had long held that isolated acts of favoritism toward sexual intimates do not constitute sexual harassment on the theory that both men and women are equally disadvantaged by the relationships, the court here found that the conduct was so widespread that it conveyed the message that the only way to succeed and prosper in the environment was to engage in a sexual relationship with the manager.² This case, thus, affirms that while not all relationships in the workplace subject the employer to risk, there is sufficient reason in terms of liability to continue to monitor workplace relationships and, in certain instances, to outright ban particular types of workplace liaisons.

This article briefly describes how the perception of dating in the workplace has evolved and offers effective steps employers can take to minimize the risks associated with office romances without necessarily banning all office relationships.

In a 2005 survey, 58% of respondents admitted to a workplace romance, up from 47% just two years ago in 2003.³ Whether you are a sociologist or a casual observer, it is not too difficult to imagine the source of this upward trend. As employees spend more and more of their waking hours at work, the prospect of finding mates outside the workplace grows slimmer. Late nights at the office or at office-related events have replaced outings to singles bars and other traditional social activities. Consequently, the number of office romances has blossomed.

Linked with this blossoming of romance is a growing sentiment among employees and employers that wholesale anti-dating policies are draconian and intrusive.⁴ This change in sentiment is supported by both a growing acceptance of the inevitability of office romances and growing evidence (anecdotal and scientific) that such relationships are not always disruptive in the workplace. Several recent studies have shown that office romances among peers can have a positive impact on work performance either because employees are channeling romantic energy into their work tasks or because they are more enthusiastic about spending long hours at work.⁵

Given this emerging view of workplace relationships, employers often feel that to be competitive in recruiting, and supportive of their existing employees, generic, all-purpose anti-dating policies must be reviewed and potentially modified. These employers must then decide what policies, if any, to adopt in their stead.

While it may be tempting to abandon one’s anti-dating policy in its entirety, as Miller illustrates, there are some relationships that continue to pose substantial productivity and liability issues in the workplace. Chief among these are (i) relationships between supervisors and subordinates; (ii) otherwise consensual relationships that have gone sour; and (iii) relationships wherein the participants are engaging in inappropriate conduct in the workplace. Thus, employers of all sizes should consider retaining policies which address the perils of these sorts of relationships, while permitting more innocuous relationships to run their natural course.

Employers should continue to be concerned about relationships between supervisors and their direct and indirect subordinates. Such relationships have long been shown to reduce morale and sow discord among employees. Now more recently, these relationships can subject employers to sexual harassment liability based on favoritism.⁶ Where a manager makes a practice of extending workplace favors or perks to his or her paramour(s), it suggests to other employees that the only way to succeed in the workplace is through a sexual relationship. In this instance, the manager in question need not ever make an unwelcomed advance or engage in otherwise harassing behavior, so long as his or her favoritism toward the paramour(s) is widespread.

The supervisor/subordinate relationship, therefore, poses two interconnected challenges: it must be monitored to avoid even the appearance of favoritism and, to be monitored, it must be known of in advance. Because both monitoring such relationships and requiring employees to report them can be awkward and difficult to implement/enforce, employers are encouraged to adopt policies banning such relationships in their entirety. However, for those employers wishing to take a more lenient approach (and willing to take on the burden of monitoring the relationships), policies can be adopted that require the supervisor — under threat of discipline — to report the relationship and that offer ways to accommodate the relationship, if possible.

Employers choosing the first approach, i.e., banning the relationships outright, should adopt a bright-line policy forbidding relationships between managers and supervisors and those they supervise. To avoid confusion, such a policy should be short and direct, such as:

Employers seeking to take a more employee-friendly approach and willing to invest the energy needed to track and monitor such relationships should adopt a policy requiring employees to report supervisor/subordinate relationships. Such a policy should address two issues: reporting the relationship and taking steps to reduce the appearance of favoritism. For example, a suitable policy would provide:

Employers wishing to be abundantly cautious might, in addition to requiring reporting, mandate that these employees sign a "love contract" which certifies that the employees are in a consensual relationship and reminds them that they are required to behave professionally at work or wherever they are representing the employer. While these contracts have been touted as a savior to employers should a harassment suit be brought, this may not always be the case. Such a contract would, of course, be useful evidence in defending a sexual harassment suit where the manager is accused of forcing the subordinate into the relationship, but would likely be vulnerable to the same claims of coercion. An employee susceptible to being pressured into a romantic liaison would clearly also be susceptible to being pressured into signing the contract.

Even where employers have chosen to permit peer relationships in the office or supervisor/subordinate relationships where a direct or indirect reporting relationship is absent, employers should take steps to address the impact of consensual relationships gone sour. In such instances, the office romance does not pose a threat to the employer’s interest until it fizzles, at which point one of the participants may refuse to accept the demise of the relationship. This refusal can take many forms and typically manifests itself as unwanted behavior at work. For example, a rejected suitor may continue to approach the object of affection for reconciliation, and/or send gifts, cards, or flowers; or the suitor may engage in more intimidating behavior, such as stalking the employee. Regardless of the type of behavior, such conduct can subject the employer to liability for a hostile work environment if the conduct occurs at the workplace and is severe and pervasive enough to prevent the complaining employee from performing his or her job.

This potential liability has caused many employers to ban all relationships in order to prevent issues with the small percentage of them that may result in such conduct. However, a total ban is not necessarily needed to combat this issue. Concerns raised by relationships gone sour can be addressed effectively in sexual harassment policies and training. For example, employees should be advised, in the employer’s policy or training materials, that attempting to continue a relationship when the other participant has ended it will constitute unwelcomed sexual conduct under the sexual harassment policy and will subject the employee to discipline, up to and including termination. Additionally, employees should be advised that such conduct should be reported immediately pursuant to the employer’s sexual harassment complaint policy and that such complaints will be promptly investigated and acted upon. By addressing this issue in the employer’s policy and training materials, the employer can minimize the risks involved in such situations without going to the extreme of prohibiting nonthreatening relationships

All employers, regardless of whether they elect to adopt a policy banning certain types of workplace relationships, should adopt an all- purpose policy prohibiting personal relationships of any kind that impact on the employer’s operations or its best interests. For example:

By focusing on relationships with the potential to impede the employers’ interests, employers can draft workplace dating policies that meet the employers’ objectives without unnecessary intrusion into employees’ personal lives.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved