Opinion: The Pitfalls of Workplace Romance in the Post-#MeToo Era

Joan McGuire

Businesses should consider love contracts to deal with office relationships.

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With Valentine’s Day fast approaching, and spring in the air, thoughts turn to love and romance.

It’s a sweet sentiment, except when the romance is in the workplace between co-workers. Particularly in the post–#MeToo age, office romances present potential pitfalls for employers.

Consensual relationships between peers may be acceptable, particularly if the employer takes certain steps to protect itself, such as having the individuals sign “love contracts,” but relationships between superiors and subordinates and unwanted flirtations or entreaties can make things very uncomfortable very quickly.

Employers have every right to be concerned. Office romances are common and pose a huge distraction to the love birds and those around them.

A recent CareerBuilder survey revealed that 36% of workers admit to having dated a co-worker, and 30% of office romances involve a superior.

And it may be getting worse – another recent survey revealed that 71% of millennials think office romances improve work performance and morale, and 40% do not even see anything wrong with dating a supervisor.

These numbers suggest that there is a major shift underway regarding the perceived propriety of dating those with whom you work.

Likewise, while there have always been trysts between co-workers, employees seem to be less secretive about such assignations – blame social media.

At the same time, the Equal Employment Opportunity Commission recently reported that employers paid out a record $68.2 million to employees alleging sexual harassment violations in 2019, besting the previous record by more than $10 million.

Harassment, discrimination and retaliation claims are all very real possibilities when an office relationship burns out.

Not only might a later jilted participant in the current dalliance feel discriminated against or harassed, co-workers may feel that favoritism is being paid or find it offensive to hear about the relationship or break-up.

With the current heightened focus on sexual harassment, now is the time for employers to ensure they have the right plan in place to address these issues should they arise.

Finding the right balance is vital when developing and implementing policies in this arena. Experience has shown that the strict “No-Fraternization” of yester-year are unenforceable. Have you seen Mad Men?

Indeed, such policies may often do more harm than good by encouraging employees to engage in secret liaisons which the employer only becomes aware of after the relationship has ended and one (or both) of the parties claims harassment or that the relationship was not truly consensual.

Instead many employers are deciding they are better off acknowledging the inevitability of office romance and putting in place specific policies related to dating in the workplace.

To that end, many employers are increasingly asking employees in relationships to sign a “love contract.” A love contract is less a contract than an acknowledgement setting out the voluntary nature of the employees’ romance.

A good love contract will clearly state that (1) the relationship is voluntary and consensual; (2) the parties know and understand the company’s policy against harassment and discrimination; (3) each party understands that both parties are free to leave the relationship without fear of retaliation; (4) the parties will keep their workplace interactions professional; and (5) the parties will inform the company upon termination of the relationship.

The parties must understand that failure to abide by the love contract’s terms may lead to discipline.

Supervisor subordinate relationships pose particular problems because of the power dynamic at play. It is all too easy, and plausible, for the subordinate to claim that he or she entered or remained in the relationship for fear that leaving would be detrimental to his or her career.

Therefore, a necessary provision in a love contract involving a supervisor-subordinate relationship is a voluntary agreement to mandatory reassignment, and the best practice is reassigning the supervisor.

Having a signed acknowledgement from the employees can be a valuable shield for the company when the relationship goes south and one of the involved parties feels slighted.

For example, one of the fundamental elements an accuser raising a sexual harassment claim must show is that alleged misconduct was unwelcome.

A properly executed love contract can be a powerful piece of evidence to rebut any suggestion that a relationship was forced upon the accuser, or that the accuser was unaware of his or her obligation to report alleged sexual harassment.

Despite the benefits of having a well-crafted love contract, it is not a get-out-of-jail-free card, and employers should not be lulled into a false sense of security.

Businesses must still be cognizant of some of the practical concerns that can come along with workplace dating — such as feelings of animosity, uncomfortableness or favoritism among co-workers — that love contracts do not necessarily fix.

Further, before an employer adopts the use of love contracts, careful consideration should be given to whether it fits with the organization’s overall culture and philosophical viewpoint.

The paradigm has shifted on issues of harassment and discrimination in the workplace, with employers’ hypersensitivity to these issues a step in the right direction toward decreasing workplace misconduct. However, statistics show that many workers are becoming involved in romantic relationships with their co-workers and even bosses.”

These things do not mix and are a recipe for continued confrontation down the road. Having strong anti-discrimination and anti-harassment policies is vital, but so too is understanding the reality of the fact that office romances will happen and preparing for the issues they raise.

Clarence M. Belnavis and Alexander A. Wheatley are attorneys at employment law firm Fisher Phillips’ Portland office. 

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