Common Sense Advice And Uncommon Legal Results

(Monday through) Friday – I’m in Love: The Ins and Outs of Workplace Romances

On Behalf of | Feb 14, 2022 | Employment Law |

With so many employers having switched over to remote operations amidst the ongoing pandemic, it may come as a surprise that even without employees physically gathering at the water cooler, workplace romances are still on the rise. Whether employees are seeing one another on Zoom or elsewhere, the truth remains that they are seeing one another. Workplace relationships have been, and will continue to be commonplace occurrences. It may be heartthrobs and heart emojis for the employees involved, but for their employers, their burning feelings inside may instead be heartburn. To shed some light at the end of this tunnel of love, we’ve addressed frequent questions employers have regarding workplace romances.

Are Workplace Romances Allowed?

Yes. While some employers may be inclined to save the heartache and prohibit workplace romances altogether, broadly-encompassed prohibitions on all employee romances are not only unrealistic, but also may be unlawful. Under California’s state constitution, employees have a reasonable right to privacy which includes autonomy privacy, enabling them to make intimate personal decisions or conduct personal activities without fear of observation, intrusion, or interference from their employer.

Bossy Love: The Danger Zone

However, not all workplace romances are created equal. Workplace relationships involving supervisors and their subordinates carry risk and may create serious conflicts of interest. In addition, such relationships may spark concerns regarding favoritism and harassment, and could result in employee distraction and reduced morale.

While on its face, a supervisor-supervisee relationship may appear consensual, the power dynamics at play may ambiguate the underlying reality. Can a supervisor-subordinate relationship truly be considered entirely consensual when the supervisor has power to make decisions that affect the subordinate’s career?  Also, from a legal standpoint, employers need to understand that they can be held strictly liable for sexual harassment claims where a supervisor is concerned, meaning the employer’s liability arises regardless of its’ knowledge of the existence of unwelcome affections.

Policies Over Policing: What Should Employers Do?

One possible solution for employers to stay ahead of the game is to implement a narrowly tailored workplace policy concerning certain manager-subordinate relationships. While broadly-applied non-fraternization policies may not be lawful, courts have generally recognized that an employer may have valid grounds to disallow manager-subordinate relationships due to an employer’s legitimate interests in avoiding conflicts of interest, reducing favoritism and the appearance of favoritism, and avoiding the increased risk of sexual harassment claims. (Barbee v. Household Automotive Finance. Corp.)

 By creating policies addressing workplace relationships, employers can create reasonable expectations and rules governing workplace romances.

In the Barbee matter, the court ruled that the terminated manager did not have a reasonable expectation of privacy in his relationship with a subordinate. The company had an express policy requiring any supervisor who wanted to maintain an intimate relationship with a subordinate to bring the matter to the attention of management to allow appropriate action to be taken avoid a conflict of interest. In addition, the company’s CEO had given the manager advance notice that company believed that his specific relationship would present a potential conflict of interest.

Employers interested in implementing office romance policies should consider requiring the immediate disclosure of such supervisor-subordinate relationships to management and prohibiting those involved from working in the same department or chain-of command. Disclosure of the relationship allow the employer to take appropriate action to mitigate any negative risk, such as through team reassignments, or requiring a consensual dating agreement to be signed. Employers may also consider additional policies which protect morale such as requiring employees who are in a relationship to not engage in public displays of affection while at the workplace. While consensual dating agreements, also known as love contracts, may offer some protection for peer-to-peer relationships, employers  should not see these agreements as a quick fix. It’s not always “signed, sealed, delivered, I’m yours.” Because of the inherent power inequity between supervisors and subordinates, it is questionable whether a love contract would withstand scrutiny should a sexual harassment claim later arise.

Finally, employers with five or more employees also should continue to meet their sexual harassment training obligations by providing sexual harassment prevention training to all new-hires within six months of hiring, and to all employees every two years.

The End of the Love Song

The heartbreaking reality is that most workplace romances don’t last forever. The greatest risk for an employer comes when love is no longer in the air. Often, the best way for employers to mitigate risk is through the implementation of a narrowly tailored policy governing workplace romances and the incorporation of an open-door-policy, and by creating a work environment where communication is welcome, and problem-solving tactics can help divert potential problems before they exist.

The attorneys at Duggan McHugh are available to provide advice and counsel on workplace romances, review and/or assist in the creation workplace relationship policies and also provide required sexual harassment training to employers of all sizes.