Romancing the Workplace
MOST ARTICLES about sexual harassment allegations in the workplace focus on completely unwanted advances, comments, or other such behaviors. But sexual harassment in the workplace can also result from fractured office romances, greatly complicating the issue. Fortunately, there are steps a company can take to minimize the risk of such an outcome.
When an office romance ends, it’s possible that the jilted party either won’t want to let it end or will want revenge. Either situation can give rise to complaints of harassment, particularly where one participant in the relationship later claims that, rather than a romance, the relationship was actually stalking or harassment.
Employers in most states are prohibited from explicitly preventing employees from engaging in romantic relationships. However, in situations where there is a romantic relationship between a supervisor and a subordinate, an employer has a stronger case to make against the relationship.
To implement such a policy, companies should stress that these types of relationships create a conflict of interest. There are laws in many states that allow companies to dictate workplace policies and procedures to remove conflicts of interest. Clearly, any type of romantic relationship between a manager and a subordinate will create such a conflict. Therefore, in many states, companies are free to enact policies preventing management-level employees from engaging in romantic relationships with their subordinates.
If such a relationship does occur, the policy should clearly state what the ramifications will be. Most companies have policies stating that such actions can result in discipline ranging from transfer to termination.
The severity of the discipline always depends on the nature and extent of the harassment in question. However, companies should try the least intrusive means first, such as transferring one of the parties to another department if a position is available. Companies should be aware, however, that a transfer doesn’t always solve the problem. For example, by transferring a manager to supervise a different department, the company could potentially magnify the problem by creating interdepartmental conflict. If a transfer doesn’t fix the problem or if there is no other appropriate position available, termination may be the only option.
If the conflict can be resolved short of termination, both parties will remain in the workplace. Therefore, the employer should remain aware of both employees’ disposition by keeping in touch with their supervisors. Follow-up interviews with both employees at a reasonable interval, such as one to three months after the transfer, also should help to prevent a recurrence of the problem.
Another tactic is to require employees to execute what is called a Love Contract. This document, though not technically a contract, formalizes the consensual nature of a workplace romance. It can be beneficial to the extent that it requires the parties to formally acknowledge that their relationship is consensual and not based on any threats or harassment. Additionally, it clarifies in writing that both parties understand that the relationship will not result in any unique benefits.
These agreements have been used more frequently over the past 10 years. However, employers should consult legal counsel prior to implementing such a policy to ensure that it passes legal muster in their state. Not all states permit them.
Although a Love Contract cannot eliminate the possibility of harassment claims or litigation following the deterioration of a romantic workplace relationship, it can serve as strong evidence that the parties to the contract were involved in a consensual relationship. Most companies find that Love Contracts are useful to help keep valuable employees on staff while helping to protect the employer from a harassment lawsuit down the line.
Some Love Contracts are very simple—only half a page, signed by both parties, acknowledging that a relationship is ongoing and consensual. Others can be as long as three or four pages, including various acknowledgments and clauses. In these longer versions, not only do employees acknowledge the relationship and their willing participation, but they also state that they are aware of the harassment policy, and they commit to letting the company know if the relationship status changes.
When companies consult with our practice to develop Love Contracts, we emphasize that a critical part of the document is reminding employees that the company’s acknowledgment of the relationship should not be confused with condoning public displays of affection or other unprofessional behavior. It should be made clear to the parties that signing the document does not give them free reign to act inappropriately in the workplace.
Companies must take into account the type of employees involved when drafting the contract and tailor its provisions accordingly. For example, a simple contract is appropriate when both parties to the relationship are rank-and-file employees who work at the same level within the company. More sophisticated contracts may be appropriate if the parties are management-level employees, because the potential for problems may be greater.
Some companies customize the contracts by incorporating language from the employee handbook and mentioning other corporate rules, such as those on the use of corporate e-mail accounts for private correspondence, for example. This makes the contract consistent with other corporate policies.
Companies must be mindful that, despite their best efforts, complaints of harassment can arise and can lead to lawsuits related to the actions alleged and the employer’s response to the complaints. Companies can reduce the likelihood of harassment lawsuits stemming from romantic workplace relationships by preventing relationships between subordinates and managers and by implementing Love Contracts.
Todd Scherwin is a partner and Colin Calvert is an associate in the Irvine, California, office of Fisher & Phillips. They represent employers in various aspects of labor and employment law. To see an example of a Love Contract, visit www.securitymanagement.com and click on “Beyond Print.”