As the product of a work romance (which led to a 40 year strong marriage), I have always been interested in the legal and practical issues surrounding employment relationships. But, in our modern work environment, where remote work remains prevalent and the #MeToo movement has raised awareness about sexual harassment, a reasonable assumption would be that workplace romances are on the decline. This is not the case, according to a recent survey by the Society for Human Resource Management (“SHRM”). In fact, data from SHRM suggests that the number of workplace romances is on the rise: one-third of American employees are currently involved in or have been romantically involved with a co-worker. This is an increase from the 27% who reported workplace romances before COVID.
In addition to this data, there are certain industries that have never pivoted to remoteness or continue to have a high in-person population density, with restaurants and hotels being prime examples. In these industries, workplace romances are likely to be even more common. Given the prevalence of romance in the workplace, some key issues need to be assessed:
1. Is romance at work illegal?
No. Title VII of the Civil Rights Act of 1964 is the primary federal law governing sexual harassment in the workplace. A consensual romantic relationship between colleagues does not, in itself, violate Title VII. Legal and/or employee relations issues may arise, of course, depending on the circumstances. Areas where problems usually arise involve, for example: when romantic relationships involve supervisors and subordinates, when a romance “goes badly”, when there are issues of favoritism, or when two co-workers bring their romance to the workplace in a way that makes others uncomfortable.
2. When does a work romance cross the line?
Many behaviors can violate Title VII. Basically, the law prevents harassment because of a person’s sex or gender. According to the Equal Employment Opportunity Commission (EEOC), “[u]n welcome sexual advances, requests for sexual favors and any other verbal or physical behavior of a sexual nature constitutes sexual harassment when such behavior explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s job performance an individual or creates an intimidating, hostile or offensive environment. working environment.”
Harassment can include both verbal and physical behaviors. Although Title VII generally does not prevent teasing, flippant comments, or other isolated incidents, such behavior can rise to the level of harassment if it is so frequent or severe that it creates a hostile work environment. . The harasser can be a supervisor, an agent of an employer, a colleague or even a non-employee. The victim of sexual harassment can be anyone affected by the offensive behavior.
3. What kinds of policies should employers have?
Romance at work is usually unavoidable. But, there is no single strategy for employers to combat romance in the workplace.
Most employers have sexual harassment policies outlining their expectations for behavior in the workplace. Many employers also have policies imposing a reporting requirement on employees who have romantic relationships in the workplace. Employers can also arrange regular training related to these policies – in fact, in some states, such as California, Connecticut, Illinois and New York, such training is required. Additionally, given the risks associated with romantic relationships in the workplace, employers may also consider implementing policies outlining employee conduct expectations related to romantic relationships with co-workers or even third parties, such as supplier employees. There are a variety of permutations to these policies, and some employers prohibit romantic relationships altogether. Others only prohibit romantic relationships between employees and their supervisors. Sometimes these policies identify situations in which romantic relationships are permitted (for example, employees working in different departments) or potential consequences of romantic relationships (for example, an employee’s transfer or termination of employment).
The appropriate policy for an employer depends on many factors, including the size of the business, the nature of the industry and the work culture/environment. Additionally, for workplaces where romance is particularly prevalent, consider whether an overbearing politics may hamper hiring and retention efforts.
4. Is a disclosure requirement always a good idea?
While disclosing a romantic relationship in the workplace is a common component of employer policies, such rules can create unintended complexity. For example, employers generally do not define exactly what a “relationship” is, and employee definitions often vary. Moreover, even when disclosure rules are in place, employees may simply not disclose – the same SHRM survey showed that 77% of employees who had a romance at work did not disclose it to their employer. Employers should assess the consequences they will impose for breaching a disclosure requirement, and particularly where there is disagreement on whether a “relationship” meets the disclosure threshold. politics. Additionally, some members of the LGBTQIA+ community may not want people at work, including HR and supervisors, to know of their sexual orientation or relationships. These and other considerations should be taken into account before a policy is written and implemented.
5. Should my workplace consider a “love contract”?
To mitigate the risk of Title VII claims, in addition to disclosure obligations, some employers require employees to enter into a consensual relationship agreement, often referred to as a “love contract.” A love contract is a written acknowledgment signed by both employees involved in a relationship confirming the voluntary and mutual nature of the relationship. Typically, a romance contract states that both employees have received, read, and understood the company’s anti-harassment policy and that the relationship does not violate the policy. Love contracts can seem cumbersome or “big brother” to employees, so it’s prudent to carefully consider their pros and cons.
Ultimately, when considering workplace romance, employers need to develop policies and practices that balance workplace culture, legal compliance, and practical realities. That needle can be tricky to thread, but – fortunately – it’s an area where the law offers a fair amount of flexibility for employers to accommodate the realities of their workplace.