Happy Valentine’s Day: Flowers, Chocolates and Love in the Office
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Beauty and the Beast, the classic Disney love story, came to mind with the approach of Valentine’s Day 2022. The Beast is the castle’s “CEO” and he rules with an iron fist, demanding the highest performance from his enchanted workers. His most loyal employee is Cogsworth, the castle’s majordomo who was transformed into a clock. Cogsworth, you might say, is the castle’s “COO/VP of HR,” and the Beast relies on him for trusted counsel. After lovely Belle is ensconced in the castle, the Beast falls madly in love with her. Unfortunately, the Beast has no idea how to show Belle how much he loves her, and he sadly laments to Cogsworth that he wants to do something special for her but can think of nothing. Cogsworth wisely responds, “Well, there’s the usual things . . . flowers, chocolates . . . promises you don’t intend to keep.”
Cogsworth’s answer no doubt reflected his concern that the odds were against the long-term success of the Beast/Belle romance. Unfortunately, that is true for most workplace romantic relationships. Most of them will come to an end and when that happens, how it ends, and the aftermath, can be complicated. Of course, not all workplace relationships are doomed. All of us have examples of those who met their spouse or partner at work. But those are the exceptions, not the rule.
Published surveys on workplace relationships report that more than 50 percent of business professionals have participated in a workplace romantic relationship, and that more than 15 percent met their spouse or partner at work. In the spirit of the season of love and romance, let me address a few common questions that I receive from employers about workplace relationships.
What can I, as an employer, do about workplace romances?
First, I will say that I’ve never been asked what an employer can do to encourage employees to date their co-workers. But there are employers that adopt a laissez faire attitude (or “hands off” approach . . . sorry, too easy). They assume their employees will exercise good judgment and not allow the relationship to adversely impact their work or others. In fact, some employers take no issue with workplace relationships, believing that employees’ private lives should not be intruded upon. Some also believe that these relationships can boost job satisfaction and overall productivity.
On the other hand, many more employers are concerned about favoritism and other conflict-of-interest issues arising out of a co-worker relationship. This is particularly true when the relationship involves a manager and their direct report. Employers are also concerned about what will happen when the relationship ends, with the very real possibility of collateral damage to the company and others working there.
If you don’t already have a policy that deals with this common workplace issue, you should consider adopting one. Waiting until it becomes an issue is typically not the best course of action. My suggestion is to bring the issue into the open and state clearly what your company’s expectations are when such relationships occur. Your employees will appreciate knowing, in advance, your expectations and boundaries.
I just want to prohibit employees from dating one another. Can my policy do that?
Yes, you can assert your authority, just as Cogsworth tried to do when he said, “All right. This has gone far enough! I’m in charge here!” As an employer, you have the right to adopt a policy that is not unlawful. But, employers should keep in mind that several states have laws that prohibit employers from taking adverse action against employees solely due to their lawful off-the-clock private activities. Also, some states have constitutional privacy protections that may prohibit employers from requiring employees to disclose that they are involved in a relationship. However, even where these laws exist, employers can still evaluate each situation on its own merits and consider taking action that is sensible and based on legitimate business reasons.
I have seen policies that advise employees that engaging in an intimate or romantic relationship with a co-worker may result in corrective action, up to and including termination. Aside from the state-law issue described above, the trend is a move away from such prescriptive policies. More common are policies that require employees to advise their employer confidentially and promptly regarding their relationship. This is a practical approach and, as awkward as it can be for employees to make their relationship known, it reinforces a company’s culture that encourages employees to be open and honest so that the company can evaluate the relationship and consider appropriate measures to prevent future problems. Such measures might include changing the manager’s authority over a direct report with whom they are involved or offering or directing a change of work location or assignment. I do caution that employers should be aware of potential discrimination issues because any measure taken should be based on legitimate business reasons.
What are the risks? Should I even worry about it?
There are risks during the time the employees are in the relationship, and additional risks after the relationship ends. During a relationship, particularly if it is a manager-direct report relationship, concerns arise relating to potential favoritism. Other employees might perceive that the direct report is receiving more favorable treatment and conclude that this is discriminatory. If a manager is involved, there are also concerns relating to that individual’s ongoing credibility and integrity, particularly if the manager tries to maintain the secrecy of the relationship (how many real secrets are there in your company?). In addition, when the relationship involves personal displays of affection, this may cause discomfort among other employees, to the point that they look for other job opportunities. If these displays are pervasive and offensive to others, they may also result in a hostile environment harassment claim.
A workplace relationship may end as a result of the mutual decision of the employees, or it may end because one of them makes that decision. When the relationship ends and it is not a mutual decision, it is not uncommon for the rejected employee to continue to pursue the relationship. This creates the risk of a sexual harassment claim. Aside from that risk, after a manager-direct report relationship ends, the direct report may perceive that he or she is being treated adversely because the relationship terminated. Again, this gives rise to potential sexual harassment and discrimination claims.
On top of these legal risks, there is bound to be discomfort in the workplace as the formerly involved employees try to have professional interactions with one another after the relationship ends. The inevitable “water-cooler” conversations that occur in the workplace can also result in divisiveness among employees as the co-workers who were once involved romantically tell their respective stories to others.
I am concerned about the risks. What can I do to protect the company and reduce those risks?
Many employers require employees involved in a relationship to sign a document that describes various understandings and commitments. These are often referred to as “love contracts.” In a love contract, the employees acknowledge that they have not been coerced into engaging in the relationship; that neither has been the victim of harassment or discrimination; that they will avoid potential conflicts of interest; and that they understand they have a right to use the company’s internal complaint procedures if they feel they have suffered adverse treatment as a result of the relationship. There are other provisions that can reduce the risks and make the employees more accountable to the company. It is helpful to discuss the situation with legal counsel and prepare a document that fits the specific circumstances. There is no one-size-fits-all when it comes to love contracts. It is also helpful to discuss with counsel how the document will be presented to the employees because your communications with the employees have much to do with the success of the love contract.
Most employers adopt a regular schedule to revisit their employee handbook and policies. This ensures compliance with the changing state and federal legal landscape. Just as important is that a periodic review of workplace policies ensures that they are still consistent with the company’s culture. Employee relationship policies should be high on your list for review and updating.
Michael A. Blickman is a partner in the Labor & Employment Group of Ice Miller LLP.
This publication is intended for general informational purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstance.