You might have dated or married a coworker. It’s likely you know people who have.
Certainly, many public figures in various sectors have found romance at work such as Bill and Melinda Gates at Microsoft, Angelina Jolie and Brad Pitt on a movie set, and Wendy Kopp and Richard Barth at Teach For America.
It used to be that consensual romantic or sexual relationships in the workplace didn’t morph into allegations of sexual harassment or favoritism.
However, that’s all changed and is why many companies have prohibited consensual relationships.
In a widely publicized event in 2019, McDonald’s, which had a ban on consensual relationships, fired CEO Steve Easterbrook over his consensual relationship with an employee.
It didn’t matter that Mr. Easterbrook had led the company to a 98-percent share increase during his four-year tenure.
Perceptions of what appears to be consensual can also look coercive.
The #metoo movement has been a factor.
In essence, employers must decide on their particular business justifications and necessities including whether to have a phase-in approach, and management must be fully involved and in enacting penalties for policy violations.
If there’s a board of directors, members must approve any policies.
Employee dating issues
Businesses fear sexual harassment lawsuits that result from a myriad of ways:
There are managers who habitually try to date employees. Such relationships have created the appearance of favoritism.
Many employees take legal action after an unsuccessful romance.
Such instances can be construed as sexual harassment, which get the attention of the Equal Employment Opportunity Commission.
No-dating policies
A no-dating policy is possible but there are potential issues. Some regions protect spouses working for the same company. The key is whether one spouse doesn’t manage the other.
Employees have rights to their privacy in non-business hours. However, a no-dating policy can be considered a violation.
It’s also risky if a company hires private investigators to surreptitiously watch employees.
Consensual-relationship agreements
Consensual-relationship agreements are used by some companies.
Signed by all parties, the written agreements confirm the relationship is consensual and voluntary, and that the relationship will not adversely impact the workplace.
To avert a potential lawsuit claiming harassment, companies attach their sexual-harassment policy to the agreement. This verifies employees are aware of the policy and know they were given the chance to report harassment.
Unique situations
Businesses with unique situations must decide on the feasibility of its options.
Employers with impressionable young workers often decide on a no-dating policy. However, the policy must be explicit whether the dating is discouraged or banned.
A discouragement policy must state what will happen if employees violate it. It might restrict manager-employee dating. It might allow dating between people who don’t work together.
Naturally, under a grandfather clause, workers who are married to each other should be exempt from the policy.
Definition of terms
Seriously, a company needs to define dating. Not all activities are construed as dating.
Employees who merely go to lunch or who go for an after-hours drink aren’t necessarily dating.
Just-cause policies
A just-cause policy means a worker who does something not specified in the employee handbook can be disciplined or discharged.
A just-cause policy can be tricky. It can easily lead to employee complaints about invasion of privacy.
Questions of rigidity
Many companies opt for flexibility. They don’t want to risk losing two outstanding employees who find love at work.
But some employers have found that too much flexibility results in discrimination claims, especially if they have a policy of discretion regarding each office relationship.
Violation penalties
Policies must designate the penalties for violations. But care is important.
For instance, in the case of managers who date subordinates which violate a policy, there are often sexual-discrimination allegations.
Why? Charges can result if both people haven’t been penalized equally such as in transfers or terminations.
Potential discrimination
Legal issues can also occur if a no-dating policy discriminates against workers. That occurs, for instance, in a male-dominated business with just a few women.
A ban on coed socialization can be interpreted as having adverse effects on the women’s career chances.
Due diligence in documentation
Senior management must meet confidentially with each individual to ascertain whether an agreement would be consensual in nature – in advance of drafting and signing a consensual-relationship agreement.
Necessary for documentation:
- The worker must comprehend the sexual-harassment policy
- The person is reassured of no retaliation after alleging sexual harassment
- The person is fully aware of how to report sexual-harassment
- The person’s file must contain confirm all rights and procedures have been explained
- The person must list the reasons for wanting to be in the relationship
Summary
Employers should consider the pros and cons in developing policies. Management must be involved in developing and implementing policies.
Favoritism should not be allowed. Decisions must be made on a phase-period or grandfather clause.
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10 Tips on Responding to EEOC Complaints – If your company is hit with an EEOC complaint, here’s what to do.
Human Resources Tips – Checklist to Prevent Legal Issues – To be successful in management or as a human resources professional, you know the importance of staying current in possible legal issues.
Avoid the 5 Biggest Mistakes SMEs Make in HR – If you manage the typical small or medium-size enterprise (SME), you’ve got your hands full just trying to stay profitable. So it’s imperative to be careful in dealing with your biggest expense – your employees.
Legal HR Issues? Best Practices in Workplace Investigations – As an employer, one of your biggest nightmares can be issues involving your employees. There can be many reasons to conduct an investigation. “Action expresses priorities,” said Mohandas Gandhi. So you should act quickly.
“Sexual harassment is as difficult to prove as it is to disprove.”
-Kellyanne Conway
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