Workplace Romance and Top Employer Mistakes in the #Metoo Era

With Valentine’s Day upon us, love is in the air and very much in the workplace. In today’s society, it seems rather natural for individuals to meet at work and form close friendships as well as romantic relationships.

However, when it comes to workplace romance it is essential for employers to set the ground rules and properly monitor and manage personal relationships. This is particularly true in the age of #metoo harassment when a spotlight has been shined on the issue of sexual harassment and the line between proper and improper workplace conduct is more blurred than ever. Thus, employers and HR need to take an active role in developing, implementing and enforcing policies and procedures that protect employers as well as employees.

Here are four mistakes employers make when it comes to workplace romance:

Failing to Recognize the Risks

It is critical for employers to recognize the risks that workplace romance can cause and the potential damage to employee productivity, efficiency and morale. Couples in a relationship at work may engage in inappropriate and unprofessional behavior that makes co-workers feel uncomfortable. And that’s if the relationship is moving forward. A workplace romance gone bad can create much more trouble for an employer.

After a relationship ends, an employer may face a sexual harassment or discrimination lawsuit because conduct that once may have been welcomed, now is decidedly not. The employer is especially at risk in situations where the relationship involved a supervisor and a subordinate. During the relationship, the employer may face claims of favoritism, preferential treatment or discrimination by co-workers.

And the employer may be liable for any supervisory harassment or retaliation after the relationship ends, even if it did not know about the harassment or was not in any way at fault or negligent. The recent spike in sexual harassment claims has brought renewed interest and scrutiny to already-complicated workplace relationships.

Failing to Have the Appropriate Policies in Place

An employer needs to adequately prepare by establishing policies that will protect its interests and minimize the risk of liability. This includes policies on workplace romance and dating as well as harassment and conflicts of interest. The workplace romance policy should:

• State whether the employer will permit workplace relationships;
• State whether employees will be required to report such relationships;
• Confirm the employer’s right to make employment decisions such as scheduling or shifts or reporting to accommodate relationships;
• Provide guidelines for appropriate and inappropriate workplace conduct during work time and off duty, including public displays of affection.

Further, the employer should closely tie the workplace romance policy to its policy regarding harassment. The harassment policy should:

• Define proper workplace conduct by providing clear examples;
• Provide a broad definition of harassment to include verbal, written and physical conduct as well as conduct via social media and the internet;
• Establish a multichannel complaint procedure allowing employees to bring complaints to various members of management; and
• Set forth that the employer will take all complaints seriously and follow up with an investigation and discipline if needed.

Lastly, the employer should implement a conflicts of interest policy obligating employees to disclose any actual or potential conflict of interest that would adversely affect their judgment, objectivity or loyalty to the employer or to their work.

Failing to Take Harassment Claims Seriously

In the era of #metoo harassment, it is important for employers to take all claims of harassment seriously. Once on notice of a harassment complaint, the employer should immediately document the steps it takes to address it by creating detailed notes and a comprehensive record.

The employer should initiate an investigation using a neutral investigator and make sure to interview the victim, the alleged harasser and any witnesses. During the course of the investigation, the employer should not hesitate to impose interim measures such as separating the two individuals or changing the lines of reporting.

It’s also important to keep all information confidential regarding the harassment complaint and only reveal it on a need to know basis. For those who violate the policy, the employer should not hesitate to impose discipline up to and including termination.

Most importantly, it is essential to hold all individuals in the organization to the same standards of conduct and make sure that no one — not a manager, supervisor or owner — is provided with special treatment and that the employer maintains a zero tolerance policy for harassment.

Failing to Monitor Relationships

If an employer is aware of a relationship between two employees, or a supervisor and a subordinate, it is incumbent upon the employer to protect itself. The employer must closely monitor the relationship, evaluate whether it is having an adverse impact on the workplace, and ensure that it is voluntary and consensual.

This may include taking measures at work such as transferring individuals, or changing shifts or the lines of reporting. Steps such as these may help if the relationship is having a detrimental impact on the workplace and such actions may prevent discriminatory treatment and favoritism from occurring. In doing so, the employer must be careful not to take any action that will adversely affect the subordinate employee.

An employer should also be on the lookout for any unprofessional behavior or public displays of affection that adversely impact the workplace.

Lastly, an employer want to consider requiring two employees who are dating to enter a love contract  indicating the following:

• The employees are voluntarily engaged in a romantic relationship;
• The relationship will not affect the workplace; and
• The participants are aware of the employer’s sexual harassment policies and rules regarding appropriate workplace conduct.

This contract will memorialize the consensual nature of the relationship and protect the employer from future harassment claims in the event that the romantic relationship ends.

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