RomanceWith Valentine’s Day just behind us, cupid may have left a few arrows in the workplace.  People spend a lot of time at work and even more time at office lunches and happy hours, so it is not uncommon for workplace relationships to evolve into intimate relationships.  A U.S. workforce study found that 37 percent of workers have dated a coworker at some point in their career.  When romantic relationships enter the workplace, the relationship is no longer just between two people, but can affect coworkers, supervisors, and the public.  While the idea of having an office sweetheart may boost some employees’ morale, romantic relationships in the workplace can create employee dissension and legal liability for employers.

Relationships Between Supervisors and Subordinates

While any relationship between employees may cause problems in the workplace, the level of exposure to employers increases when a romantic relationship develops between a supervisor and subordinate.  Such relationships can have actual and resonating effects on the workplace because of the power inequalities in the positions and the insecurity the relationship may create for other employees, especially those who report to the supervisor.  In one case, the Eleventh Circuit found that a public employer’s interest in discouraging intimate association between supervisors and subordinates was so critical to the effective functioning of the employer that it outweighed the employee’s interest in the relationship.  (Starling v. County Board of Commissioners.)

More importantly, an employer is strictly liable for supervisory employees’ sexual harassment regardless of whether the employer knew of conduct.  (Kelly-Zurian v. Wohl Shoe Co.)  Indeed, relationships that begin as consensual between supervisors and subordinates may later form the basis of a lawsuit.

Sexual Harassment

If employers do not take swift, proper action upon discovering a romantic workplace relationship, they may be faced with claims of sexual harassment.  Under the Fair Employment and Housing Act (“FEHA”), it is unlawful for an employer to subject an employee to different terms and conditions of employment because of the employee’s sex.  There are two types of sexual harassment.  The first type is “Quid pro quo” harassment, which occurs when submission to sexual conduct is explicitly or implicitly made a condition of a job, a job benefit, or the absence of a job detriment.  The second type is a “hostile work environment,” in which an individual must show: (1) he or she was subjected to conduct of a harassing nature because of his or her sex; (2) the conduct was both subjectively and objectively unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the employee’s working environment so as to create an abusive working environment.

In one example of a workplace relationship forming the basis of a sexual harassment claim, Allan Samson hired Joyce Chan as his legal secretary and the two dated for two years.  Chan alleged that she continued the relationship out of fear of losing her job but eventually ended the relationship when she realized that Samson’s behavior constituted sexual harassment.  She alleged that soon thereafter, Samson retaliated against her by changing the terms of her employment.  Chan informed Samson that she was planning on filing formal charges of sexual harassment and retaliation with the Department of Fair Employment and Housing (“DEFH”) and state court.  Samson ended up settling with Chan for $50,000 and a favorable letter of recommendation.  (Samson v. Allstate Insurance Company.)

Sexual Favoritism

Employers must also be aware of any sexual favoritism that may result from romantic relationships.  Sexual favoritism is favoritism shown by supervisors to employees who are the supervisors’ sexual partners.  (Miller v. Department of Corrections.)  Third party employees who are not involved in the relationship may be motivated to bring claims of sexual favoritism if they see a coworker receive job benefits as a result of being intimately involved with a supervisor.  The California Supreme Court has recognized that an employee may establish a sexual harassment claim under the FEHA by demonstrating widespread sexual favoritism that is severe or pervasive enough to alter an employee’s working conditions and create a hostile work environment.  (Miller)

Anti-Nepotism and Anti-Fraternization Policies

There are several steps employers can take to set standards of conduct for workplace relationships and manage office romances.  Federal and state laws, as well as the California Constitution, generally prohibit employers from making employment decisions based on marital status.  Anti-nepotism and anti-fraternization policies, however, are permissible.  If a personal relationship in the workplace would affect supervision, efficiency, security, or morale, an employer would have a strong argument for implementing and enforcing anti-nepotism and anti-fraternization policies.

These policies should require employees to immediately disclose romantic workplace relationships to a supervisor or manager.  By requiring disclosure, employers can red flag romantic relationships between supervisors and subordinates or relationships that create a conflict of interest.  The California Court of Appeal has upheld policies that require a supervisor to bring a consensual intimate relationship with an employee to management’s attention for appropriate action.  (See Barbee v. Household Automotive Finance Corp.)

Once an employer learns of a romantic workplace relationship, the employer should immediately explore all options and take non-discriminatory corrective action.  Pursuant to a policy, employers can reassign or transfer one or both of the employees.  Employers can seek the affected employees’ preferences for reassignment or use objective standards such as personnel rules, memorandum of understanding policies, or seniority to determine where to reassign the employees.  If an employee violates the anti-nepotism or anti-fraternization policy despite notice of the policy, an employer may choose to take disciplinary action against the employee.  This may be the right decision if an employee has a pattern or practice of engaging in office relationships that disrupt the workplace.

Employers should uniformly enforce anti-nepotism and anti-fraternization policies.  They should not ignore some relationships while taking action against other relationships.  Employers should regularly circulate policies with their personnel rules or memorandum of understanding.  Employers with represented employees should also remember that they should negotiate anti-nepotism or anti-fraternization policies with employee organizations through the meet and confer process.

Love Contracts

In the past, employers would occasionally put “love contracts” into place when they discovered a romantic relationship.  A “love contract” is an agreement that affirms that the relationship is consensual and that the employees’ understand the employer’s anti-nepotism, anti-fraternization, harassment, and retaliation policies.  Love contracts are less common today because employers rely on policies to address and manage romantic workplace relationships without having to resort to contracts.

Employee Privacy

Regardless of any policy about dating in the workplace, an employer ultimately may not be able to prevent two employees from engaging in a personal relationship outside of the workplace.  Also, employees can in some circumstances make arguments that they have an expectation of privacy in their personal off-duty relationships.

While employers may not be able to completely prevent or prohibit office romances, an employer can establish policies that require disclosure of romantic relationships and give the employer the discretion to take appropriate corrective action.  Furthermore, employers should implement and enforce state-of-the-art sexual harassment and retaliation policies.  By taking these steps, employers reduce the odds that they will be hit by a lawsuit if an office romance goes awry.