04/ 09/ 2007
by Pamela Mills-Senn
Romantic relationships between coworkers or (even more fraught) between superiors and subordinates place any size company in jeopardy, but the risk can be especially acute for smaller businesses, says attorney Robin Bond, president and founder of Transition Strategies, LLC, Wayne, Pa.-based employment law firm.
The biggest concern centers around the potential for sexual-harassment charges should the relationship sour and the spurned party take this route to retaliate, Bond says. But this isn't the only worry workplace liaisons present.
Office romances can impact everyone who comes into contact with the twosome, causing co-workers to feel uncomfortable and leading to charges of a sexually-charged, hostile workplace, explains Dallas-based Carrie Hoffman, attorney with Gardere Wynne Sewell LLP, a full-service law firm. And, if the involved parties happen to be superior and subordinate or a company owner and an employee, it can create the perception that one must sleep with the boss in order to get ahead.
Morale and productivity issues aside, these relationships can pose a real financial hazard to small companies should they find themselves having to defend against a sexual-harassment or hostile workplace claim, Bonds says. Considering the ramifications and taking a proactive approach, rather than waiting for the ire to hit the fire, is smart. Let's explore two somewhat different strategies for dealing with office romances.
Disclosing relationships
Some companies require involved employees to sign disclosure documents (euphemistically referred to by some as "love contracts"), where both parties state for the record that they are involved in a sexual relationship, freely entered into.
A disclosure document is different from a sexual-harassment policy, says Bond, adding that every company must have a sexual-harassment policy. In addition to outlining appropriate on-the-job behavior, disclosure documents provide evidence that no one was coerced into the relationship, offering the company protection against a sexual-harassment lawsuit.
Hoffman, who calls these "consensual relationship" documents, has drafted several for clients. Most often the requests are prompted by concerns over superior/subordinate relationships or those involving high-level executives, and most of the time, they approach her after these situations arise, which is not ideal timing, she emphasizes.
The documents state that neither party has been forced into the relationship, that they cannot use the relationship to advance the career, and that it cannot impact work or the work environment. The signers also acknowledge they've read the sexual-harassment policy, and that they'll notify the company if the relationship becomes harassing.
Although Hoffman says this doesn't offer complete protection ("They could come back later and say the document was signed under duress," she explains), there are advantages.
"You have something that establishes the fact that the relationship is consensual, that the company knows about this, and that if it ever becomes harassment, it's the person's obligation to inform the company," she explains. "It allows the company to say they've done everything they can."
Discouraging relationships
Let's make one thing clear, policies outlawing workplace involvements seldom work. Plus, they put the company in the position of having to investigate suspected affairs and respond in some way once uncovered--neither one an appetizing prospect.
Even so, there may be good reasons to consider taking a strict "no fraternization" stance (although for family-run businesses, this will likely strike employees as hypocritical) rather than relying on disclosure documents. Although Roberta Chinsky Matuson, principal of Human Resource Solutions, a Northampton, Mass.-based consulting firm based, isn't entirely opposed to such documents, she does think they offer companies a false sense of security.
"[They] do not fully insulate employers from claims of harassment in the workplace," she explains. "The victim does not have to be the person harassed, but could be anyone affected by the offensive conduct. For example, if a manager was dating someone they supervised, and the perception was that this particular person seemed to be getting all the plum assignments, then other people in the office could claim sexual harassment."
For this reason, she favors policies that discourage employee romances at any level. David Lewis, president of Operations Inc, a Stamford, Conn.-based HR outsourcing and consulting firm, agreed.
"You can't prevent workplace relationships; they're going to occur," he says. "But if companies have a policy in place that prohibits these relationships, especially between senior and subordinate, and establishes remedies, they set themselves up to reduce a lot of headaches."
But doesn't this just drive behavior underground?
"That might not be such a bad thing," Lewis responds. "There's a lot of merit to ‘don't ask, don't tell.' " Once an employer becomes aware, they have a responsibility to respond somehow. Policies should never say, ‘don't tell us,' but when you have a policy in place saying these relationships are prohibited, it may offer better legal protection in the long run.
"[Workplace romances are] an absolute minefield," he continues. "But by asking people to come forward, it's like borrowing from Peter to pay Paul. On the one hand, you don't have to do the investigation of them. But once you know, now you have to investigate if the other employees are being adversely affected. I would tend to chose not to have people come forward each time. Otherwise the thought becomes, if you have a relationship all you have to do is tell the company."
Regardless of how you chose to handle this issue--do something, Matuson says.
"Every company should have a policy addressing this. Don't wait until the situation happens, and you have to scramble," she says, adding the following caution.
"And I would say that if you're the owner or senior level, and you're involved in something like this--which has been the case in the majority of the situations I've handled--cut it out. When this happens from the top, it's like a tsunami. It raises all kinds of questions and distrust and makes it very hard to lead."
