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What about dating? Should employers ban it altogether?

You would have to live under a rock to be unaware of the increased public sensitivity to claims of sexual harassment. Many such claims are a result of a voluntary relationship gone awry. Should a risk-averse employer simply ban coworkers from dating to avoid sexual harassment claims? CERTAINLY NOT! Frankly, that would be throwing the baby out with the bath water.

Voluntary dating relationships at work can be a blessing for many. Most workers spend a half of each waking day with their coworkers; often more time than with their own families. It is natural that romantic relationships may develop over time. I have had many clients express immense pride at the number of their employees who had met, fallen in love with and married a coworker. THAT is good old-fashioned Team building!

Unfortunately, given the recent spate of harassment claims, a wise Employer understands that it should set its romantic notions aside and take all necessary steps to prevent sexual harassment and provide a safe workplace. You may have wanted to stay out of your employees’ personal lives, but potential liability under the law dictates that you have some involvement.

In today’s litigious climate, a prudent employer should consider creating or revising a dating policy to supplement its anti-harassment policy. At a minimum, the policy should mandate that no supervisors date their subordinates. Even if it is a voluntary relationship, the risks to the parties and the employer are prohibitive. First, if the subordinate ever feels bullied or forced to continue an unwanted relationship, the tacit threat of retaliation may impair that subordinate’s ability to set boundaries and/or make a complaint. In my experience, about one third of harassment cases flow out of the end of a supervisor/subordinate relationship. A second risk of permitting chain of command relationships is that other similarly situated subordinates may perceive supervisory favoritism of the paramour and that can lead to damaged morale or a claim of discrimination by the employees not romantically involved.

The ban on supervisory/subordinate romantic relationships should extend to anyone in the reporting or evaluative chain of the subordinate. No employee should have their work performance evaluated by anyone with whom they have or ever had a romantic relationship. Permitting otherwise would expose the manager or equivalent to criticism about their neutrality and would always be subject to challenge. Even a perceived conflict of interest would undermine any manager’s effectiveness.

A prudent employer should also consider addressing romantic relationships between coworkers who are not subject to a supervisory conflict. There is no “correct” solution to the age-old dilemma of love at work, but I suggest that the following concerns be considered in the development of a dating policy:

  1. A no-dating policy can interfere with employee’s expectations of privacy, thus damaging morale
  2. Enforcement of a no dating policy creates additional responsibilities for front line supervisors that they may perceive as requiring them to “spy” on their subordinates
  3. Policies that permit relationships but require disclosure by the employees to HR are difficult to draft with any precision. For example, if two coworkers go for a drink after work, must that be disclosed? How about if they grab a bite afterwards? Besides, does an employer really want to add to its burdens the tracking of employee social lives?
  4. No matter what policy an employer chooses to follow, there is no substitute for HR sensitivity and supervisory training about how to address a romantic relationship at work. They should address every known romantic relationship with a documented discussion on the policy against harassment and the procedure for making complaints.

My experience is that most prudent employers do not want the added burden of policing rank-and-file employee social lives. They perceive the tendency of current law to encourage employer proactivity in this area as an undesired consequence of otherwise good public policy. They recognize the real risk of permitting chain-of-command relationships, and the trend has been to do so. However, they are unwilling to allow risk factors alone to force them to become paternalistic “dating police”.

The only policy relating to rank-and-file dating that is not unduly intrusive is a disclosure requirement that does not get bogged down in the details; one that requires disclosure only when the employees deem the relationship “serious”. While this creates deliberate vagueness, it imposes a fair responsibility on employees which is two-edged. If they fail to disclose the relationship, it will be difficult for one of them to later complain that the employer “should have known”. Arguably, the Faragher Affirmative Defense may apply. Moreover, from a practical standpoint, placing the burden on employees to make the disclosure will be effective because most employees would prefer disclosure over the web of secrecy.

Contact me at stuartrosenfeldt@gmail.com if you’d like a free copy of my dating policy, which is consistent with the above recommendations.