February 13th, 2019
Emily Reber at Troutman Sanders
Valentine’s Day is right around the corner, what better way to celebrate than to examine the pitfalls of office romances? The “Me Too” era is still in full swing, and it is subjecting employers to more scrutiny than ever. Have you considered how to best handle office romances between employees before Cupid’s arrow meets its mark?
There are several ways that a workplace romance can expose an employer to legal liability. The relationship can turn sour, making things uncomfortable for one or both parties going forward. Allegations of sexual harassment may arise if either party is dissatisfied with what happened or engages in harassing or stalking behavior after the breakup. If a supervisor is involved, the organization may well be held liable based on that management role.
Even if the relationship runs smoothly, employers still face legal risks: co-workers may bring allegations of favoritism or unfair treatment because of the relationship. Courts have generally disfavored these so-called “paramour preference” claims (because the disparate treatment is premised not on the employee’s gender but rather on a romantic relationship between the employer’s decision-maker and the person treated preferentially – in other words, a preference for one’s lover results in both male and female employees being at a disadvantage, so there is no sex-based discrimination). Nevertheless, defending against these claims is time-consuming and expensive, and even if there is never a lawsuit, if other employees feel that they are being treated unfairly the relationship is likely to have a negative effect on office morale.
So, what is an employer to do? The story of Brian Krzanich, the CEO of Intel until his resignation in June 2018, is an interesting illustration. When Intel discovered that he had violated the company’s prohibition against managers having sexual and romantic relationships with direct and indirect reports, he was obliged to leave the company within a matter of a few days. Intel was praised for its handling of the situation and avoiding a “Me Too” fallout, but the situation demonstrates that swift and decisive action is often necessary in today’s climate. Intel’s policy governing workplace romances that was put in place in 2011 – and the Company’s following it without fail or delay – made this situation easier to navigate (albeit not for Mr. Krzanich).
The Intel strategy of expressly prohibiting such relationships is one way employers can help to protect themselves against the risks inherent in workplace romances. That prohibition focused solely on relationships with direct or indirect subordinates, which is likely more realistic than a blanket prohibition. But any useful policy must give the employer a framework by which to navigate these issues.
Another alternative is a policy discouraging dating between employees and requiring disclosure of such relationships to the employer. Requiring disclosure gives the employer the opportunity to protect itself up-front and may reassure other employees that the company is working to prevent harassment, favoritism, or retaliation because of personal relationships.
Employers who require disclosure of romantic relationships also may utilize a tool sometimes known as a “love contract.” These documents provide written confirmation that the employees’ relationship is voluntary and that both parties understand the company’s policies forbidding harassment and know how to report and address any work-related problems that may arise. A love contract may help an employer defend against potential claims by showing that the employer used reasonable care to prevent any harassment and that the employee had and was made aware of the avenues available through the company to try to prevent and avoid any harm.
While companies may prefer to prevent intimate relationships from ever arising between their employees, they are likely to happen anyway. By their very nature, interoffice romances are ripe with controversy and must be managed carefully, both for legal and business reasons. By implementing practical policies and developing an action plan with their counsel, a savvy employer can still come out smelling like a rose.