What Should You Do About "Romantic" Workplace Relationships?
Michael G. Trachtman |
There is no denying that romantic relationships in the workplace often lead to problems. But the solution is not to promulgate a policy banning these kinds relationships – they are going to happen no matter what your policies dictate, and an unworkable and unenforceable ban of this type will do little more than promote concealment and resentment. It’s much more complicated than that.
Instead, the solution, to the extent there is one, is to manage the reality of workplace relationships. To do that, you need to focus on the most dangerous and corrosive type of romantic workplace relationships: those between supervisors and their direct subordinates.
The “Don’t Ask, Don’t Tell” Approach
Many employers deal with romantic workplace relationships on a “don’t ask, don’t tell” basis. It almost never works. There are common variants — “so long as they are not flaunting it in the workplace, it’s none of my business,” “I can’t control what people do in private, but don’t let it affect the workplace” … and so on. Employees typically know what’s going on, and employers who close their eyes to the issues raised by supervisor-subordinate relationships lose a lot of employee trust and good will in the process.
And then, there is this: when the problems caused by supervisor-subordinate relationships are allowed to fester, they often grow into full-fledged sexual harassment claims, replete with six-figure damage potential – and you will not know about it until it’s too late.
It’s Not Just About the Break-Up
The common understanding is that serious risks only arise when the workplace relationship turns sour. Not so.
Consider a situation in which Joe, a manager, heads a team of eight subordinates. Joe is in a serious dating relationship with Sally, one of the team members, and everyone else on the team either knows it or suspects it. (Most of the reported court cases involve male supervisors and female subordinates but, more frequently, those roles are being reversed.)
Every time Joe gives so much as a nod of approval to Sally, the other team members view it as unfair favoritism, and a damaging attitude develops – the perception is that something other than hard work and good results is what counts in the company. When it’s time for performance evaluations and compensation adjustments, the resentment multiplies.
As the pot continues to boil, some of Sally’s female co-workers head to the EEOC. They contend that, as demonstrated by Joe and Sally, in order to succeed in the company, you have to submit to a romantic relationship with management. If proven, that’s “quid pro quo” sexual harassment, the most serious form of sexual harassment there is.
The EEOC then starts comparing the compensation decisions, work assignments, training opportunities, and workplace concessions Joe gave to Sally, but not to other team members. Can each be justified solely on Sally’s merit? Were other team members arguably more deserving? Does the documentary evidence support Joe’s decisions? Often, one of the team members will claim that Joe made overtures toward her as well – and when she was not receptive, she paid for it, perhaps subtly, but she knew what was up.
Then the legal hammer falls.
First, since the late 1990’s, the law has been as follows: if an employee has been sexually harassed, as the team members may well have been, and if that employee’s terms or conditions of employment (pay, work assignments, training …) have been negatively affected as a result, as the team members claim, then the employer is liable. Period. No defenses are permitted. You lose.
Second, even if a sexually harassed employee’s terms or conditions of employment were not affected, the employer can only defeat the sexual harassment claim if the employer took reasonable steps to prevent the harassment, and if the employer, once on notice of the potential issue, intervened and did what was necessary to stop it. For this reason (among others), a “don’t ask – don’t tell approach” is the stereotypical precursor to a major damage award.
The Break-Up: Their Problem Becomes Your Problem
Let’s suppose that, a few months later, Sally breaks up with Joe, and Joe’s not happy about it. Sally claims that since the break-up, Joe has allowed his emotions to influence how he treats her – she’s no longer getting the assignments she deserves, she’s not getting the guidance she needs, her evaluations are being affected, and so on.
That kind of treatment can constitute unlawful harassment and discrimination – and to the extent the employer lets it happen, the employer has bought itself a substantial liability to which, again, it has virtually no defense.
If Sally’s complaint is more along the lines that Joe’s emotional state, while not directly affecting the terms of her employment, is seriously burdening her work life, the employer has an obligation to take affirmative steps to stop the adverse treatment – which usually entails job reassignments, transfers, monitoring, and a host of other preventive and reactive measures. Especially in a small company, where job reassignments and transfers may not be possible, these issues can become very difficult and expensive.
What Do You Do?
First things first: you must have appropriate harassment and discrimination policies in force; you must have institutionalized a legally compliant complaint and investigation procedure; you must consistently enforce those policies procedures; and you must regularly train management-level personnel on how to implement and apply those policies and procedures. You’ve got to have a foundation in place before you can start building a house.
In respect to the romantic workplace relationship issue, there is no one-size-fits-all solution. You will need to design and implement a policy that will be influenced by the size of the company, the nature of the work force and supervisory structure, the culture, and a host of other factors. But at its core, the policy must, at the least, include the following substantive requirements:
- Romantic relations between a supervisor and a subordinate employee must be promptly disclosed to the employer. Failure to make the disclosure will result in disciplinary action, which may include termination.
- Once disclosure is made, the employer will work with the parties to the relationship in the effort to arrive at an arrangement that is acceptable to the employer in its sole discretion. The arrangement may entail changes to job assignments, responsibilities and locations. However, the employer provides no assurance that a workable arrangement will be possible, in which case termination of one or both parties remains an option.
It goes without saying that the policy, once developed, must be properly implemented and consistently enforced. The failure to do so is analogous to having purchased guards that can be installed on dangerous machinery to prevent employee injuries, and then failing to install them. You will (justifiably) be painted as being reckless with your employees’ rights and well-being, and you will pay a price for that.
Like love itself, all of this is complicated and difficult, but worth the effort.
[author] [author_image timthumb=’on’]https://meainfo.org/app/uploads/2014/10/michael-trachtman.jpg[/author_image] [author_info]Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years. He can be contacted at firstname.lastname@example.org. See www.powelltrachtman.com for more information.[/author_info] [/author]