Originally published on the Sova Law Blog.
This post is part of Priori’s blog series “From Our Network,” where we feature lawyers in our network discussing important issues small businesses face. In today’s post, employment lawyer Kristine Sova advises employers about how to handle workplace romance.
With Valentine’s Day approaching, and workplace romance as pervasive as ever, what better topic for this week’s post than options for employers seeking to handle workplace romances between employees.
The Bad and the Ugly of Workplace Romance
When a workplace romance ends, it can have all kinds of repercussions, regardless of whether it ends on a sour note or on a seemingly good note. A dumped co-worker might attempt to woo back his/her former lover, and those attempts could be viewed as contributing to a hostile work environment if the attention is no longer welcome.
Worse is when the relationship involves a supervisor or a higher-ranking colleague. In those instances, the subordinate or lower-ranking employee could claim that the romantic advances were never welcome, and that any “consent” to the relationship was the result of coercion, fear of being fired or demoted, or in response to a promised promotion or other preferential treatment.
That’s not all. Concerns regarding workplace romance extend beyond the demise of a relationship, and include issues like: public displays of affection; inappropriate sharing of confidential company information between romantic partners; inappropriate gossiping among co-workers; less productivity from the couple and their colleagues; claims of favoritism; poor employee morale; and damage to the business because the pairing may be seen as unprofessional.
With this much at stake, what options do employers have?
Workplace Romance Policy
One option is a workplace romance policy. Some workplace romance policies ban workplace dating entirely, while some only prohibit supervisors from dating people who report directly to them. Others also forbid romances between employees with significantly different rank.
Regardless of what’s prohibited by a workplace romance policy, the policy should state that romantic relationships between co-workers are not the company’s business unless the office romance affects the workplace.
Employers should also keep in mind that workplace romance policies can sometimes backfire. There’s always the possibility that employees will date and keep it a secret. And, if harassment does occur, the victim may not come forward for fear of being disciplined for breach of the workplace romance policy.
Another option is a “love contract” (or “consensual relationship agreement”). A love contract is a relationship agreement that, in theory, allows employees to disclose office romances while at the same time insulating employers from liability in the event that the romantic relationship ends.
The terms of love contracts are fairly robust, and typically include terms addressing: the voluntary nature of the couple’s relationship; compliance with the employer’s anti-discrimination and anti-harassment policies; termination of the relationship; retaliation; workplace behavior; and modification of reporting relationships.
The notion that love contracts help mitigate sexual harassment litigation risks is a big draw for employers. Love contracts, however, don’t entirely insulate employers from liability, and the romantic relationships most likely to cause problems for an employer (i.e., affairs) are those in which the participants will be least likely to self-report and sign a love contract. The greater benefit of love contracts is that they help employers maintain a functional office environment, for example, by reminding the couple to behave professionally and securing the couple’s agreement to keep public displays of affection out of the workplace.
Employers who ultimately do opt for love contracts must recognize that requiring love contracts is no substitute for having a well-implemented policy against sexual harassment, appropriate training (for all levels of staff and management), and a sound enforcement program. On balance, most employers would probably be better served trying to create a culture of compliance and respect in the workplace than having employees sign contracts.
