“Love Is In the Air…” Don’t We Have A Policy Prohibiting That?

Now that most of you will be silently singing Barry White to yourselves for the rest of the day (“And if you can’t sing Barry White to yourself the week of Valentine’s Day, when can you?” I ask…), on to our holiday-themed topic. I have recently been asked by several employers about implementing a policy prohibiting workplace romance. In theory, these policies always sound like great ideas – prohibiting workplace romance significantly reduces the chances of having a sexual harassment suit, right? In my experience, the majority of sexual harassment complaints are the result of a workplace romance gone horribly sour. Further, workplace romance is a distraction, leads to gossip, and, at the very least, uncomfortable situations when it goes wrong. I agree all of this is true. But the practicalities of enforcing an absolute no workplace romance rule are difficult and can actually harm employee morale. Such policies can also lead employers to be faced with losing some of their key employees or best performers for violations of such a policy. Further, such a policy will inevitably lead to employees “sneaking around” which while undoubtedly fun for the employees involved at least for a while, only causes more distraction in the workplace.

The only way a policy prohibiting all workplace romance can work is for the policy first to define what types of relationships are prohibited and then to require employees to “self-report.” The first very practical question in drafting these policies is how do you define the types of relationships that are prohibited? What makes something a “romantic” relationship? The second even more practical question is at what point are employees required to self-report? Is it after the first time they go out together alone and only one of them pays? Is it after the first kiss? You see where this is heading…

Even more concerning, is how does the employer handle a report from another employee that two of his or her co-workers are involved in a relationship when neither of the allegedly involved employees has reported it? If the employer has a policy prohibiting workplace romance, the employer would be expected to “investigate” the report as an alleged violation of policy. This investigation only leads to very uncomfortable conversations that themselves could then be turned into discrimination or harassment complaints by the investigated parties.

So, if a policy prohibiting all workplace romance isn’t the answer, how can employers take proactive steps to prevent sexual harassment claims that result from workplace affairs? Here are five ideas:

1. Training for Supervisors: Instead of trying to put policies in place, train your supervisors to use good judgment in interactions with subordinates. Supervisors should not put themselves in situations with subordinates that leave them vulnerable to sexual harassment complaints. Supervisors shouldn’t go drinking alone with subordinates on out of town trips, for example. I have seen many supervisors terminated at the end of a sexual harassment investigation, not because they necessarily engaged in sexual harassment, but because they used such poor judgment in social interactions with their subordinates.

2. Sexual Harassment Training for All Employees: There is simply no substitute for regular training of all employees on an employer’s sexual harassment policy. If all employees are regularly reminded of the employer’s policy, they are less likely to use poor judgment when dealing with co-workers and if something unusual happens, your employees are more likely to report it immediately. Having an employee report the first time poor judgment is used is always better so the employer can address the concern before the situation spirals out of control.

3. Encourage Supervisors to Report: Asking all employees to report any romantic relationship is going to be difficult. However, if a supervisor notices employees becoming overly friendly with one another or with the supervisor, the supervisor should report it to human resources. Even if human resources chooses to do nothing with the information at the time, making the Company aware so the concern is documented will be helpful if concerns are raised by either employee in the future. Further, supervisors should understand the risk of entering into a relationship with a subordinate and should report any such activity to human resources so that the situation can be handled in a way that protects the supervisor and the company.

4. Have a Strong Sexual Harassment Policy that Provides Clear Reporting Procedures: If an employer has a strong sexual harassment policy with clear reporting procedures that it regularly distributes to employees, it has an affirmative defense to most claims of co-worker sexual harassment (i.e., not involving a supervisor) if the employees fail to report the harassment to the employer. As a result, instead of trying to regulate your regular employees social lives, focus on providing a clear means for them to report any concern with another co-worker so that the issue can be addressed before it becomes a lawsuit.

5. Consider a Policy Regulating Supervisor/Subordinate Relationships: Depending on the size and dynamics of your company, you may wish to prohibit supervisor/subordinate relationships outside of the workplace. These types of policies prohibit supervisors from socializing outside of the workplace/work-sponsored events with subordinates. These policies provide clear guidelines for supervisors regarding their behaviors. I generally don’t believe such policies to be necessary in small to mid-sized companies that do not have a traveling workforce. In fact, they can hamper healthy supervisor/subordinate relationships. However, in companies where monitoring supervisor behavior is more difficult due to size or travel, such a policy can provide clear expectations for supervisors and a legitimate means for subordinates to report a concern that may not rise to the level of harassment, but would allow human resources to address poor decisions before they lead to disaster.

So consider your policies, your training schedules, and then go back to singing your favorite Barry White song (mine is “Can’t Get Enough of Your Love, Babe”) and have a Happy Valentine’s Day!

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