By Randall Sutton, Partner – Employment Law & Litigation Practice Group
Many of us may have dated (or even married) a co-worker. Work can be a perfect matchmaker. There are lots of reasons why workplace relationships flourish. When hiring, employers look for applicants who have personalities that will fit well with the rest of the team, so the intention is for everyone to get along famously. When at work, we try to put our best foot forward to make a good impression on those around us. Employees spend long hours with one another working on common goals and challenging tasks, celebrating victories along the way. For supervisors and managers, the position of respect and confidence can likewise foster admiration and sometimes affection.
What’s the Problem with Supervisors Dating Subordinates?
It probably goes without saying, but supervisor/subordinate relationships are problematic. Even though romantic relationships in the workplace are common, employers have legitimate reasons for concern about a supervisor or manager dating a person who reports to them. When co-workers date one another, there is always the potential for fallout that impacts the workplace should romantic feelings fade, or worse yet, become hostile or intimidating. Where the romance is between a supervisor and subordinate, those emotions and potential hostilities can result in claims of retaliation, sexual harassment, or sexual assault.
In some cases, the supervisor or manager may initially pursue or consent to the relationship, only to later experience feelings of regret about the relationship and its impact on his or her marriage and the working relationship with the subordinate. The supervisor may feel trapped in the relationship, knowing that if the relationship were to become known, it could have a serious impact on his or her career and reputation. The supervisor may feel the need to create distance from the subordinate at work, leading to reassignment to a less desirable job or shift, or termination of the subordinate, for arguably pretextual reasons. Even where the subordinate is not terminated or reassigned, breaking up the relationship may lead to claims that the supervisor is now treating the employee “differently.” Even where the subordinate has initiated the end of the romantic relationship, any future adverse action against the employee is likely to be perceived as “retaliation” for ending the relationship.
What if the Relationship is Consensual?
Sexual harassment laws prohibit “unwelcome” sexual advances. Technically, if coworkers or a supervisor/subordinate participate in a truly consensual romantic relationship, there is no viable sexual harassment claim. The key is proving that the relationship really is consensual. Consider how that might be proven. In litigation over this issue, we have used love letters, text messages, emails, conversations with coworkers, and the contents of computers in an effort to discern whether the relationship is consensual. Litigation over this issue can be invasive and uncomfortable for everyone involved. I have handled many claims where there appears to be little question that the parties were involved in a consensual relationship, but the former employee now alleges that the entire relationship was a sham. The typical argument is that the supervisor exercised a position of power, and the subordinate was in fear of losing his or her job if he or she did not participate in the relationship.
So, Supervisor Relationships are a Bad Idea. What about Relationships between Co-Workers?
Relationships between co-workers don’t present many of the concerns that make supervisor-subordinate relationships so risky. Nevertheless, it is still important for employers to ensure that co-worker relationships are truly consensual and that neither party feels forced to participate. For example, a one-sided relationship may give rise to claims of hostile environment harassment. Given that romance can fade, employers should also take care to ensure that both employees are not subject to hostility or post-breakup intimidation or inappropriate advances, particularly when the decision to break-up was not mutual.
Isn’t What Happens Outside of Work None of My Business?
Even though workplace relationships necessarily involve off-duty conduct, the relationships can impact the working environment. Employees engaged in the relationship still work together, so actions outside of work have workplace implications. Moreover, harassment, bullying and other inappropriate conduct, even when occurring exclusively off-duty, can create liability for the employer.
What does a Lawsuit Over Romantic Relationships Look Like?
Being sued is always painful, but when an employee accuses the boss of sexual harassment, it can also become quite embarrassing and distracting to the entire company. Most relationships have an electronic footprint that becomes a roadmap to discovery in a civil lawsuit. In an effort to prove the relationship really was consensual, the lawyers involved will pour over emails and messages retrieved from hard drives or smartphones. Facebook and other social media postings become evidence, as do love letters and Valentines’ Day cards. Credit card bills are scanned for gifts and trips. Co-workers may become witnesses. As discovery proceeds, these details become the subject of chronologies and deposition questions.
What about the Employees Not Involved in the Relationship? Do They Have Rights?
For the most part, employees who are not participating in the relationship have no claim, even if they are denied the perks enjoyed by participants in the romantic relationship. Of course, even if coworkers do not have an actionable claim, the relationship is a source of unnecessary distraction and is likely to become the source of office gossip, undermining both productivity and the reputation of the supervisor. Although employment lawsuits by coworkers are typically not successful, the appearance of favoritism is nevertheless bad for morale.
What is the Company to Do?
Given the inevitability and downsides of consensual relationships, there are various ways an employer can regulate workplace romance.
No Dating Policy:
Although it can be lawful for an employer to implement a “no dating” or “non-fraternization” policy, as with many things, such a policy is easier said than done. Your employees may perceive this to be an area of personal privacy and choice, and are likely to feel that, frankly, their off-duty romance is none of the company’s business. As a practical matter, it’s also very difficult to draw the line between ordinary interaction between supervisors and subordinates and interactions that fall within the definition of “dating.” Is lunch considered “dating”? What if it’s at the fast food place next door? What about dinner on a ride home from a business trip? A movie? What if other employees are present?
Another important consideration in drafting a “no dating” policy is to decide what the consequences of a violation of the policy may be. An absolute prohibition may simply drive the conduct under the radar rather than prevent it. Typically, the company will reserve the right to transfer, reassign or possibility even terminate one or both participants in the relationship. Despite the logistical and practical problems that may arise when drafting such a policy, it is worth considering whether a formal policy of some sort is appropriate, particularly between supervisors and subordinates.
Consensual Relationship Acknowledgment:
When a romantic relationship does arise, for the reasons discussed above, it is very important to identify the relationship in writing as consensual as early as possible. We advise that the company have the employees sign a “consensual relationship acknowledgement,” which serves several purposes.
For example, the consensual relationship acknowledgment confirms each participant’s awareness of the company’s nondiscrimination policy and is used in conjunction with interviews to help verify and document that the parties really are engaged in a consensual relationship. The parties to the relationship are cautioned that the relationship can’t interfere with the work of the company. The acknowledgement also identifies the consequences should the relationship become a distraction or otherwise problematic. The acknowledgment makes clear that if the relationship ever evolves and is no longer welcome, or in the event that a participant later feels he or she is the victim of harassment, the employee must immediately notify HR so that the company can take effective steps to remedy the issue.
Conclusion
Employers who think ahead and have policies and training in place will be better prepared to manage the romantic relationships that inevitably arise. Should the company become aware of a romantic relationship, prompt action to investigate and respond can help avoid the prospect of costly, protracted and often embarrassing civil litigation.
Randall Sutton is a partner in the Employment Law & Litigation practice group. Randy is also a member of the Health and Wine & Vine industry groups. The information in this article is not intended to provide legal advice. For professional consultation, please contact Randy at rsutton@sglaw.com at Saalfeld Griggs PC. 503.399.1070.
The contents of this publication are current as of February 14, 2022 and should not be construed as legal advice. Information in this publication may only apply in certain states. Readers should not act upon information presented in this publication without individual professional counseling. Receipt of this publication does not constitute or create an attorney-client relationship. The material in this publication may not be reproduced without the written permission of Saalfeld Griggs PC. © 2022 Saalfeld Griggs PC
