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SPRING FEVER . . . IS IT LOVE OR LIABILITY THAT’S IN THE AIR?
What to do When Cupid Takes Aim at the Office
March 7, 2005 wire service report: Boeing CEO Harry Stonecipher resigned Monday, just over a year after he took the top job at the embattled aircraft maker and defense contractor, due to what the company said was an improper relationship with a female executive. The action was taken even though the relationship was consensual, and the executive did not report directly to Stonecipher. Boeing’s board concluded that the conduct violated the company’s code of conduct, and reflected poorly on Stonecipher’s judgment.
 Odds are that Cupid has been very busy in your workplace as well. Surveys indicate that more than half of all employees have had a romantic relationship with a co-worker at some time during their career. That’s not surprising, since today’s workers spend an average of one-third of their time at the office or other work environment.
A character in the movie Coming to America observed that “there is a very fine line between love and nausea.” For employers, that observation has special meaning, borne of the risk of lawsuits and liabilities. Office romances at any level within a company can be extremely dangerous, for a variety of reasons. The question for employers is not what to do if the love bug hits your workforce, but what to do before the inevitable infection begins.
Music – the so-called language of love – can help us categorize both the problems, and the solutions.
“Looking for Love… In All the Wrong Places”
Sometimes, genuine relationships blossom in the workplace. Sometimes, however, executives use, and abuse, their positions of authority as a means by which to attract the opposite sex. This is the most obvious, and still a very prevalent form of sexual harassment. Employers who turn a blind eye to office relationships may be portrayed in a courtroom as allowing, if not endorsing, this kind of conduct.
“I Heard It Through the Grapevine”
Relationships within a line of management authority can eat away at morale and credibility. Picture a situation in which a manager is in charge of a department of ten individuals, and is secretly dating one of them. Inevitably, the workplace rumor mill will rev up. Whatever promotion, raise or favorable work assignment the subordinate employee obtains, the others in the department will attribute it to the relationship. This leads to the “you can’t get ahead unless you date your manager” attitude, which corrodes productivity, increases turnover, and promotes sexual harassment claims.
“I Can’t Get No Satisfaction”
And once a manager/subordinate relationship goes sour, every time the subordinate does not get a promotion, raise or favorable work assignment, the subordinate will likely blame it on the fact that the relationship terminated. This, too, erodes morale and management credibility, and is a frequent basis for employee harassment and retaliation claims.
“Breaking Up Is Hard To Do”
Most breakups are unpleasant, but some are downright ugly. At the very least, this leads to distractions in the workplace, not only among the former lovers, but among their co-workers, who inevitably take sides, as the analysis of who did what to whom in the relationship consumes more and more work time.
In some situations, the party who did not want the relationship to end may seek revenge, ranging from gossip and rumor-mongering, to sabotaging the other person’s work product. There have also been a number of cases where the jilted employee began stalking his or her former love interest – both at work and away from work -- raising difficult employer liability issues.
Often, and particularly in manager/subordinate situations, the jilted employee will approach human resources and claim that the other person was sexually harassing him or her by creating a “hostile work environment.” This most likely will lead to a formal investigation, requiring interviews with a number of co-workers. Even if the allegations are ultimately determined to be unfounded, the incident will have resulted in a substantial use of resources (chiefly the time and effort of human resources and management) and, in many instances, the creation of bad feelings and resentment among members of the work group.
”The Book of Love”
So what do you do? As is so often the case, employers need to develop a written policy, distribute it, and enforce it consistently and uniformly. There is no singular “right” policy that works in all workplaces, but there are some guideposts that are generally applicable.
First, dating or romantic relationships between managers and subordinates should be prohibited, period. These kinds of relationships are fraught with danger. Even if there are no sexual harassment issues raised by either participant in the relationship, issues of perceived favoritism among other employees are virtually inevitable. If the relationship does go sour, there are always palpable risks that the subordinate employee will claim (justifiably or unjustifiably) that he or she was coerced into the relationship through promises of raises and plum assignments, or threats of poor evaluations or termination.
Second, for similar reasons, consider extending the prohibition against workplace relationships outside of the direct management/subordinate line of authority, to include relationships involving any management level employee who can exercise and direct or indirect authority over a subordinate’s terms or conditions of employment. For example, an EVP in accounting may have sufficient influence in the company to favor or disfavor employees in the marketing department. In such a case, the relationship becomes as dangerous as those between a manager and his or her direct report.
“Love and Marriage”
Recent surveys reveal that nearly one-third of all dating relationships begin in the workplace, and of that number, almost half result in marriage or a long-term committed relationship. Many companies have nepotism policies, which prohibit the employment of relatives or those in “committed relationships” within the same department or “chain of command.” Some companies go so far as to prohibit the hiring of a spouse/”committed partner” or close relative altogether.
But what happens if two employees are hired into the same department, and later marry? If the company did not prohibit dating, but has a nepotism policy, an absurd result can follow – you were allowed to date, but you were not allowed to get married.
That’s another reason why a policy regulating workplace relationships is important: it tends to prevent those problems by forcing one of the dating partners to resign or transfer before either of the two most troublesome relationship alternatives for the workplace result – the ugly break up, or marriage. Otherwise, a company could face a sex discrimination claim or an invasion of privacy claim if it acts against the couple, and if the company makes a beneficent exception, it could be setting a dangerous precedent that could be used against it the next time it attempts to enforce the policy.
“Are You Ready for This?”
Making the correct policy and enforcement choices is an individualized effort in which generalizations are dangerous. Small “family environment” employers must consider the impact an office romance will have on an already close-knit workforce. Larger employers may have different concerns, such as the potential for confidentiality leaks or implications of favoritism in promotions. When drafting a policy to address workplace romance situations, consider the following:
- The pros and cons of how far the policy should extend, and what the consequences should be, for dating among co-workers, supervisor and subordinates, employees and clients or vendors, and so on;
- What legitimate business reasons you are attempting to serve through the policy;
- All aspects of the policy that must be included, such as off-site concerns, electronic communications issues, and so on;
- Whether documenting the romance in the nature of a “Relationship Contract,” in which the romantic partners confirm in writing that the relationship is consensual, is the best approach;
- The impact on the company’s Ethics Policy with regard to extramarital affairs with co-workers;
- The logistics of keeping the information confidential, including the proper record keeping protocol, and which members of management will be in the “need-to-know” group;
- What methods will be utilized to ensure consistent and prompt enforcement;
- What will be done to ensure that the company has up-to-date sexual harassment and retaliation policies that complement and even cross-reference the office romance policy;
- What will be done to maintain a compliant and inclusive complaint and complaint investigation policy that includes the issues involved in office romances;
- What will be done to secure competent and experienced legal counsel to review all policies to ensure that the language achieves the intent, and minimize potential legal exposure.
Once your policy has been drafted, it is worthless unless and until it is well-publicized and understood by all employees. The entire workforce should be clear as to what is forbidden or required, encouraged or frowned-upon, the consequences for violations and the resources available for counseling and support. Including information about any available employer-sponsored work-life programs can be helpful and will reinforce that an employer is not trying to impinge on an employee’s privacy, but rather its intent is to assist the employee in balancing the difficult realities of an office romance.
“The Long and Winding Road ”
According to a Society for Human Resource Management (SHRM) study, only 12% of surveyed employers provide training to supervisors and managers to handle the issues surrounding an office romance and the dangerous path it can take. Establishing a policy without training the people who are to administer the policy is like handing someone a map and the car keys, without first teaching them how to drive. You cannot just throw policies at problems – to effect real change, you have to incur some long term effort.
Consider how comfortable and competent an untrained manager or supervisor will be when faced with these very predictable concerns – and whether the untrained manager will likely make the situation better, or worse:
- overt sexual behavior in the workplace
- disruptive flirting or innuendo
- office gossip
- impact on morale and productivity
- the appearance of impropriety or favoritism
- retaliation and/or “guilt by association” issues
- performance issues
- nepotism conflicts
- sexual harassment
- stalking
- negative or discriminatory reactions to homosexual relationships
- financial improprieties
- confidential information becoming “pillow-talk”
- blackmail when the relationship is prohibited or adulterous
- visible and/or disruptive behavior when the relationship sours
“Bewitched, Bothered and Bewildered”?
Many prior Avoiding Lawsuits issues have highlighted the huge gap between telling managers what they are and are not supposed to do in the abstract (which is where most corporate training begins and ends), and equipping managers with the “under the gun” decision-making and problem-solving skills they will need when faced with a real problem in the real world.
We’ve been through this before. We focus on providing the kind of training that works, and the kind of training that lasts.
Let us know if we can help.
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