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January 2020

How Employers Can Prevent Cupid's Arrow From Causing Pain in the Workplace

With Valentine’s Day around the corner, now is a good time to revisit your office romance policy. Employers often shudder at the thought of workplace romances and the impact they could have on office morale and productivity. In light of the firmly entrenched #MeToo movement, employers remain particularly concerned that, should a workplace romance fizzle, they could also face a potential harassment claim.

While it may be tempting to ban office romance altogether, workplace romance is inevitable and forbidding it is simply not realistic. In fact, according to a 2019 omnibus poll released by SHRM, one out of every three American adults currently is or previously has been in a workplace romance. This is consistent with a 2018 CareerBuilder survey, which found that 36% of employees admit to having dated a coworker. So, what can employers do? Fortunately, there are measures employers can take to protect themselves from the potential pitfalls that can arise from their employees falling in – and out of – love.

To avoid the risk that an employee in a consensual workplace romance will later allege the relationship was involuntary, employers may require employees to disclose any workplace romance and enter into a consensual relationship agreement, also referred to as a love contract. A love contract is essentially a written acknowledgement by two employees confirming the voluntary and mutual nature of the relationship. Love contracts aver that the employees are both free to end the relationship at any time without fear of retaliation. The love contract should also affirm that both employees have received, read, and understand the company’s anti-harassment and anti-discrimination policy, that the relationship does not violate the policy, and that entering into the relationship has not been made a condition or term of employment.

Employers can also implement personal relationship policies in addition to their sexual harassment policies to help reduce office romance-related issues. These policies vary greatly from employer to employer and can get creative to meet an employer’s specific needs and goals. For instance, some companies have implemented policies that allow employees to only ask a colleague out on a date once, but no more than once if rejected the first time, in an effort to avoid harassment allegations. Employers may also require employees to maintain clear boundaries between personal and business interactions. This would include prohibiting employees from engaging in physical contact or other displays of affection on company premises that could make others feel uncomfortable.

At a minimum, employers should prohibit employees from dating subordinates, and, any employees who are dating should not be permitted to participate in any company decision-making processes that could affect the other’s terms or conditions of employment. Employers may choose to preclude employees in a consensual social relationship from working within the same department and reserve the right to transfer or terminate either employee to avoid any potential conflict of interest or allegations of favoritism because of the relationship.

With the New Year, now is a good time for employers to review their employment policies, including their anti-discrimination and anti-harassment policies, as well as to determine whether they should implement any additional policies or procedures to address workplace romance.

For more information, please contact your CSG attorney or the author listed below.