Several months ago, I wrote a blog article on the #Metoo Movement and sexual harassment in the workplace. Clients often ask about romantic relationships in the workplace. Are these unlawful? What are the risks? Well, that depends on the situation. If the relationship is truly consensual, then it would not run afoul of the federal and Wisconsin laws prohibiting sexual harassment.
Even though the behavior is not illegal, it still can present problems and risks in the workplace. Employers have reason to be concerned about romance in the workplace, especially where the employees involved are in a supervisor-subordinate relationship.
Some common problems that can arise from personal relationships in the workplace include:
- Problems When the Relationship Fizzles: What might start out as consensual, may become unlawful harassment when one person calls it quits and the other still wants the relationship to continue. Repeated requests for dates, unwanted touching and contact, and sharing details of the sexual relationship with others in the workplace are all situations that could give rise to a claim of unlawful harassment and liability.
- Workplace Gossip, Distraction and Reduced Productivity: Not only are the employees who are engaging in the relationship likely to be less productive at work, but the relationship may cause other employees to engage in workplace gossip and speculation, and to be distracted from the work they are supposed to be doing.
- Favoritism: Giving favored treatment to a subordinate with whom a manager or owner is romantically involved could give rise to claims of favoritism by other employees. While favored treatment is not necessarily unlawful, it is not good for employee morale, and it could very well give rise to a claim of discrimination where those who feel they are not getting the same favored treatment are members of a protected class. For example, if a manger gives preferential treatment to a 20-year old subordinate with whom he is romantically involved, but does not give the same advantages to her co-workers who are all 40 or older, this could give rise to claim of age discrimination.
- Abuse of Power: A business manager or owner is in a position of power that can be misused to pressure a subordinate employee into feeling that he/she has no real choice other than to laugh at the supervisor’s sexual jokes or accept the supervisor’s romantic advances. This position of power also places a manager or owner in a position to take retaliatory action against a subordinate who rejects his/her behavior or advances. A romantic relationship is not mutual and consensual and may be unlawful when a subordinate feels compelled to tolerate it to keep his/her job.
- Concerns with Professionalism: Public displays of affection in the workplace are unprofessional and may cause others to feel uncomfortable. A victim of sexual harassment can be anyone affected by the offensive conduct. Thus, an observer who finds behavior to be inappropriate and offensive could be the one to file a claim of sexual harassment.
- Sharing of Confidential Information: If the relationship is between a superior and subordinate, there is concern that information to which the superior is privy, but the subordinate is not, could be shared with the subordinate employee during the course of the relationship.
So, what is an employer to do? It is probably impractical to prohibit all personal or romantic relationships between employees. However, employers can take preventative measures to try to manage the situation and limit the risk of claims and liability. Some best practices to consider include:
- Develop and implement a policy that defines prohibited workplace harassment, and train employees at all levels so that they recognize when conduct crosses the line and becomes unlawful harassment.
- Consider developing a workplace romance policy that requires employees to inform the employer when they become involved in a consensual relationship with another employee.
- Consider having employees who become involved in a romantic relationship provide a written statement confirming that their relationship is voluntary, mutual and consensual, and that they understand they are to inform the employer if the relationship becomes unwelcome or unwanted.
- If the romantic relationship is between a superior and subordinate, consider requiring one of the employees to transfer to a different position or department or to resign from the employment or position so that the employees are no longer in a reporting relationship.
- Inform employees of the expectation that they are to report to the employer when conduct that was once welcome becomes unwelcome or when a supervisor’s actions become retaliatory.
- Have employees sign a confidentiality agreement whereby they agree not to improperly use or disclose confidential business and personnel information to others, and discipline employees who improperly use or disclose this information.
If you need assistance dealing with personal relationships in the workplace, or you want to put policies and procedures in place to reduce the risks inherent in workplace relationships, McCarty Law’s labor and employment attorneys can help.
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