Nyemaster Goode, P.C.

Nyemaster Goode Top 10 List: No. 3 – Employees Under the Mistletoe—Romance in the Workplace

By Katie Graham

This year we have had to tackle quite a few difficult situations with romantic relationships in the workplace. It’s hard to say that the number of romances in the workplace has increased over the years, but many employers’ desire to address them has.

One of the major problems with relationships in the workplace is that an employer could find itself addressing issues of alleged sexual harassment or a sexually hostile work environment. Whether the situation involves a romance between a supervisory employee and a subordinate or a relationship between peers, the uncertainty of the carry-over into the workplace is cause for concern.

For example, if the existing relationship deteriorates, and the individual in the supervisory position continues to pursue a relationship with the subordinate and the conduct becomes unwelcome, a previously consensual relationship could become the focal point of liability. Furthermore, an employee that is engaging in a relationship with an individual that they have decision-making authority over could cause an issue if adverse employment action taken is motivated more by problems in the relationship than with performance at work.

Employers should not let an individual who is in a relationship participate in any decision-making process that could affect the other’s pay, promotional opportunities, performance reviews, hours, shifts or career. Similarly, when the deteriorating relationship involves peers or co-workers without supervisory authority over each other, conduct expressing emotional anger by one of the co-workers could transform the other’s work environment into a hostile, threatening, or even abusive situation.

The best way to address these issues is to develop a romance-in-the-workplace policy that is practical. Generally, a policy that prohibits any kind of socialization outside of the workplace between employees will not be effective. A policy that prohibits romantic relationships between supervisors and subordinates is an option, but the employer has to be prepared to enforce it uniformly and across the board. This means that when your best performer is tangled up in the policy, there cannot be an exception. Applying any workplace policy inconsistently is likely to result in a parade of horribles.

One approach we recommend is to develop a consensual relationship agreement to use in conjunction with a romance-in-the-workplace policy. This agreement is an acknowledgment by the employee that the relationship entered into is welcome, voluntary, and consensual. The agreement states that either employee may end the relationship, and that retaliation will not be tolerated.

While addressing these issues seems to walk a fine line between work-related issues and employees’ personal issues, the employer needs to develop a workable strategy because, at the end of the day, the employer will be the one defending the sexual harassment claim in court.


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