David Harmon: Hi, I’m David Harmon.
Mariya Gonor: And I’m Mariya Gonor.
David Harmon: And we are the employment strategists. Welcome to our latest episode, Love and Liability in the Workplace.
Mariya Gonor: Exactly. Today we’re talking about office love.The copier site connection, the team messages, that starts with quick question, and somehow ends with dinner reservations.
David Harmon: And let’s be honest, if television has taught us anything. It’s that people absolutely will date at work. Jim and Pam, Derek and Meredith.
Mariya Gonor: You know, your favorite TV drama is not that far off from, uh, real life. SHRM recently conducted a study that showed that 47% of the US workforce has been or is currently in an office relationship.
David Harmon: In some of the TV dramas, there were policies that were written, such in the office by the very person who was in the relationship.
Mariya Gonor: Yes. And this is why we have jobs. So why don’t we dive in into discussing why this actually matters. Right. The first question to be asked is whether or not it’s illegal to date in the workplace.
David Harmon: Well, it’s not illegal. But it just exposes the company and the individuals involved in the relationship to liability.
Mariya Gonor: That’s fair. There’s no federal law as far as we know, that prohibits in office romance and as far as I’m aware, not a state law either, that would prohibit an office romance.
David Harmon: That’s right. But it can lead to a lot of problems, as I’ve said just before for the individuals who were dating and also for the company.
Mariya Gonor: So why should the employer care?
David Harmon: Well, Mariya, the law doesn’t regulate dating. It regulates discrimination, harassment, retaliation, and abuse of power. So, can you date at work? Well, it depends. It depends on power, on policy, on what happens when it ends. That’s a critical juncture in any relationship, and especially one in the workplace.
Mariya Gonor: So, I guess this is why some CEOs get fired or get into trouble for dating?
David Harmon: Absolutely, because at that level. It’s not about romance, it’s about governance.
Mariya Gonor: Take Steve Easterbrook, for example.
David Harmon: Oh, Steve Easterbrook.
Mariya Gonor: The former CEO of McDonald’s. He was terminated after engaging in a consensual relationship with an employee in violation of company policy though. Later, investigations discovered that he was also engaging in additional relationships that were not disclosed.
David Harmon: Or take Jeff Zucker, former CNN President. Now he resigned after failing to disclose a consensual relationship with someone in the workplace, a colleague, during an internal investigation. So, he failed to disclose that during an investigation where he was being asked questions about his conduct in the office. In those cases, the issue wasn’t, you fell in love. It was non-disclosure. That’s the key thing. Non-disclosure, a policy violation, and a breach of fiduciary duty.
Mariya Gonor: So, it is important to note that in those cases, obviously the company is the one who had a policy that required disclosure. And this is exactly what we’re going to talk about today. Whether or not companies should have policies, and what those policies should provide for.
David Harmon: Right, and when policies are communicated. The company wants the employees to be aware of those policies. That’s why those handbooks are distributed. And that’s why there are receipts and acknowledgements so that the company makes sure that they have communicated what those policies are, and then there is an obligation to enforce them. But also for the individuals in as employees to follow those policies. And here you had a senior person and then a subordinate person, or you had, two people on the same level. Okay, nondisclosed. And that’s the problem. And especially where he did not own up to it. So, at the executive level, dating can trigger board oversight, shareholder scrutiny, and reputational damage.
Mariya Gonor: That’s a problem. We all remember what happened this summer with a Coldplay concert. And the CEO, Astronomer, and the Chief of Human Resources.
David Harmon: That’s incredible. Chief of Human Resources.
Mariya Gonor: Okay. So, to prevent that imbalance, as we’ve said before, and we’ll say again, the employer has to decide. Whether or not to have a policy in place and if to have a policy in place, what the policy will provide for. In the absence of the policy though, here’s where the issue may arise.
David Harmon: Right, so one person thinks you’re dating, right, and the other person does not.
Mariya Gonor: This is more common than people think. We in the business refer to it as sexual harassment, but you know, the other party to the imagined relationship may believe in good faith that, you know, he’s in a relationship or she.
David Harmon: Well, so much of it is, is the perception as well, and what someone’s actions indicate, and so any one person may perceive certain actions different from the next one, but there are lines that should not be crossed.
Mariya Gonor: Of course. And one person may think that they’re flirting while the other person thinks that they’re being a little icky and persistent.
David Harmon: Or they’re also saying something where they’re just trying to be polite and nice. And complimentary. And sometimes those compliments can go a little bit too far.
Mariya Gonor: That’s fair. And then when the employer has a policy that provides for required disclosure in that would trigger the conversation in workplace of hey should we report this? And then the other person can say, well, no, I’m going to report it ’cause you’re harassing me.
David Harmon: That’s true, too. Well then that’s a, that’s the big reveal. Is this a relationship, a consensual relationship, or not? In that situation, it’s not consensual.
Mariya Gonor: Absolutely. And that takes us into the second situation, which is just general sexual harassment. If the conduct becomes unwelcome, persistent, or inappropriate, it can absolutely create a hostile work environment.
David Harmon: Right? So, consent is not a blanket that covers all future behavior. That’s the key thing. And silence is not consent.
Mariya Gonor: Absolutely. Especially not in a workplace. Okay. The other problem is when there is an actual relationship, but it ends and, maybe not well.
David Harmon: Well that’s a lot of times we find that these employment situations, these claims arise at the point where, soon after a breakup. Because now that dynamic has essentially exploded. So, the employment, situation leaves the honeymoon phase. And goes into the claim phase.
Mariya Gonor: And then sometimes what we see, in managers that are not properly trained or are not being good managers after the breakup, all of a sudden, performance reviews start becoming more negative. There’s issues about the person’s, you know, attendance or attention to detail, and other stuff that’s performance related.
David Harmon: Well, that’s just gilding the lily for a retaliation claim. which is what a lot of, situations we’ve encountered entail.
Mariya Gonor: The other concern, of course, is the quid pro quo claims, right? The classic scenario. And let’s remind our readers what quid pro quo means.
David Harmon: So that means you do for me and I’ll take care of you, okay? You engage in this relationship with me, and I will promote you. I will pay you more money. I will protect you, I will give you opportunities. And it’s a kind of a balancing of one does for the other in exchange for certain benefits.
Mariya Gonor: Absolutely. And these kind of claims could arise from the person who is in the relationship, but also from the employees who perceive the relationship from the sidelines. Right. Perceived favoritism. When even when the parties that are actually in the relationship are happy, their coworkers see what’s going on, and they believe that in order for them to, you know, move forward with their careers, they need to be engaged in the relationship with their boss or whoever.
David Harmon: Right. And that’s also bleeds into the hostile work environment, the observation of that happening around them. The people who are not involved in the relationship now feel pressure. And that’s also a real negative in the workplace.
Mariya Gonor: Absolutely. Courts often say that paramour preference alone isn’t sex discrimination unless it disadvantages a protected group. But that does not mean that this wouldn’t trigger an actual litigation, a complaint, or just generally a very negative morale in the office.
David Harmon: But morale damage can really be real, I mean, affect the culture of the workplace.
Mariya Gonor: So, this may sound like a silly question, but David, should employers have a dating policy?
David Harmon: I believe so. Absolutely. it sets the rules of the game, so to speak. There are dress code, policies, there are policies about attendance. There are policies about a wide range of behavior in the workplace, and this should not be one that’s excluded.
Mariya Gonor: No, absolutely. And given the risks that we just discussed a couple of moments ago. And yes, while this is all generally in the context of at dual employment, still having a policy that the employer can point to, could give them protection, provided that the policy is actually enforced. Right. And could give them a peace of mind that will mitigate some of these risks.
David Harmon: Well, Mariya, that’s not because you want to police love, it’s because you wanna manage the risk. So, if you don’t define the rules, you will. Define them later in a deposition.
Mariya Gonor: And we all know how uncomfortable those questions could potentially be.
David Harmon: Oh, those are questions that also come up in an investigation, for sure. And we’ve seen that time and time again. So, what should the policy look like? Let’s talk about that.
Mariya Gonor: Well, of course, there are degrees as with everything. So the first, I guess question is, should you prohibit dating in the workplace entirely? What do you think?
David Harmon: I don’t think you can. When people are together, there’s a psychological theory that says that when people, you know, proximity can breed romance. So, when you have people in the workplace, people working together, people interacting, you’re not gonna be able to say, sorry, there’s absolutely a prohibition on dating.
Mariya Gonor: That’s not a very realistic policy. You’re saying.
David Harmon: It’s not realistic. That’s exactly what I’m saying.
Mariya Gonor: Yeah, absolutely. Yes. And so, what would happen if you have an unrealistic policy, people will be violating it without reporting it. And that brings us back to all the risks that we just discussed a few minutes ago.
David Harmon: Right, exposure. Exposure. Exposure.
Mariya Gonor: Okay. So then, if you are going to allow dating in the workplace, what could it potentially look like?
David Harmon: So, we’re talking about the scope of the policy and how far reaching it should be. So yes, there’s the minimalist. You take a very abbreviated type of approach to it. But then again, what relationships do you prohibit?
Mariya Gonor: Right, like, if you’re gonna say, generally, we’re not gonna prohibit all the relationships, but we are gonna outline, let’s say, we’ll prohibit a relationship between a supervisor and the subordinate, right?
David Harmon: Well, that is automatic jail card, if you’re playing Monopoly. Okay. That’s an automatic, that’s a no-no. It’s just not gonna work unless it’s. Disclosed in accordance with the policy.
Mariya Gonor: Right, so instead of having a policy that prohibits it, maybe you have a policy that mandates disclosure instead right? And then it will allow for the relationship, but then the supervisor and the subordinate have to go to HR and maybe sign a love contract. cue Michael, Michael Scott, quote here.
David Harmon: Well, I call ’em romance agreements, but sure.
Mariya Gonor: Or romance agreement. And then HR can make a decision as to whether allow for the supervisory structure to continue or perhaps reassign one of the parties in the relationship to a different supervisor?
David Harmon: Well, if it’s a CEO and a subordinate, I don’t know where you’re reassigning the CEO. So, it’s gonna be the subordinate that gets assigned and reassigned if that’s the case. And then that potentially is gonna expose the company to retaliation. So, the CEO, which is really the person you would think, would not engage in that because of the responsibility that person has to the overall management, the entire company.
Mariya Gonor: But we’ve seen at the beginning of this episode, it happens. Yes, it happens. So, so, yeah. So, I guess there would be a reassignment. With respect to your reassignment, there is a couple of things that employers should keep in mind to prevent a claim of retaliation, right? And it’s to make sure that the person who’s being reassigned doesn’t get a demotion, that their salary is not affected, that they’re not worse off as a result of this relationship.
David Harmon: Right, so as they insulate the company from a claim of retaliation, that’s the key thing. So those attributes of a retaliation claim have to be addressed so that the company. Is somewhat insulated as best they can be from a potential claim.
Mariya Gonor: Yeah. And perhaps if the person involved in a relationship is a CEO, then there could be somebody else who’s responsible for reviewing the subordinate’s partner performance.
David Harmon: Correct. And there could be, it depends upon the type of company, but there’s a board. And a board might, you know, be engaged for that purpose because that, that is a real high exposure, situation for a company.
Mariya Gonor: So, let’s talk about disclosure. Okay. Any policy, right? Any policy that you’re gonna have in place will have to require a disclosure mechanism. And some of the policies that we’ve seen require both parties to report, which then could create sort of an argument, oh, I thought the other party reported or other policy that we’ve seen require the most senior person make it their responsibility to make sure that the report is made.
David Harmon: Well, the senior person, especially a C-suite officer of a company has a fiduciary duty to the company, which I think is at a higher level than a, let’s say, a lower echelon employee. And so that would, I think, call upon that person to report that.
Mariya Gonor: So, what do you think? Should it be the se the more senior person to report, if it’s not a CEO, should it be the more senior person to report, or both?
David Harmon: Well, it should be the senior person.
Mariya Gonor: Yeah. Why do you say that? Why do you think?
David Harmon: Because it’s a power difference within a relationship and also because that senior person has a responsibility for anybody working beneath, him or her.
Mariya Gonor: Right, I think that’s fair also, when you’re enforcing the policy and if you find out that the relationship was not disclosed, you have one party that you can go and reprimand for not disclosing. You have one person that was made responsible and that’s a clear, you know, clear violation line.
David Harmon: Well, within a company, within any company, a senior person has more responsibility and more power to enforce the policies of the company and to follow them. Enforce and follow.
Mariya Gonor: Yeah. I think that’s very fair. Okay. Now that we’ve discussed who can date. And what needs to be done once there is a relationship in place. Let’s talk about what we can do to deal with the rumor mill that inevitably is going to happen when others see the budding relationship.
David Harmon: Well, yeah, for sure. People are gonna be concerned about maintaining the privacy of the relationship. But as you’ve often said.
Mariya Gonor: There’s no privacy in the workplace.
David Harmon: Absolutely not. So what does that mean? How do people who are reporting or have an obligation to report protect the privacy of the relationship? I don’t know how they go about that. They have an obligation to report. There is that obligation. And HR has to keep it private. It’s, it’s analogous to a HIPAA requirement. That when you go to a medical office, the medical office is not supposed to disclose your identity that you’ve been to the medical office or to share details. So, this is analogous to that.
Mariya Gonor: For sure, and then if there is still a rumor mill, not because they learned about it. You know from the HR report, but because they’ve just observed different behaviors, the OHR has to be trained enough to deal with that and provide training to the employees because the rumor mill itself and the comments that may be made could subject the people that are in a relationship to hostile work environment.
David Harmon: Absolutely. I mean, that happens anyway. Anytime two people are hanging out together but they’re not just hanging out, they’re working together. Anytime that happens then, then the rumor mill just starts to churn.
Mariya Gonor: Right. It’s not just the actual relationship, it’s also the perceived relationship.
David Harmon: It’s perceived relationship. Relationship. Right.
Mariya Gonor: And again, we fixed that through training and appropriate reprimand. If HR observes somebody making inappropriate comments about the people’s relationship or perceived relationship, the HR would have a duty to act and investigate.
David Harmon: And inappropriate comments by those who are not in the the alleged relationship. Also, can create the hostile work environment right. So, it’s, it’s really, as you said, it’s the training, but it’s the knowledge of what the responsibility is under the policy of the company for both.
Mariya Gonor: Okay, once HR has received the report of the relationships, should there be a love contract?
David Harmon: Or also called a romance agreement, and that is a document that’s going to protect not only the individuals, but also the company. So what? What should it have?
Mariya Gonor: So, first, we wanna make sure that it reaffirms the employer’s commitment to anti-harassment policies and requires reporting. If concerns arise, for instance, at some point, if this relationship becomes no longer consensual. The people in the relationship are aware that they still have rights, they still have protection, and they can come to HR seeking those protections.
David Harmon: It’s also an acknowledgement of the policies by those signing the agreement. The two people signing the agreement have to acknowledge the policies of the company, the fact that there was an obligation to report the anti-harassment policies. And what has to happen in that situation. All of those policies need to be acknowledged and probably a reaffirmation of the policies under the entire handbook as well.
Mariya Gonor: That’s fair. Another thing that the agreement could provide for is to allow the company to adjust reporting structure. Identify that new reporting structure in the agreement and get the consent of the subordinate employee to the new reporting structure. Have them acknowledge that they recognize that this is fair, acceptable to them.
David Harmon: So, when you say change the reporting structure, what you’re suggesting is that if there’s a senior to a subordinate relationship. That now the subordinate person is no longer going to be reporting to the senior person? At least under the terms of the romance agreement. Is that what, you’re clarifying that point?
Mariya Gonor: Exactly. Okay. Yeah. Yeah, exactly. And then when that happens, we then get the agreement from the subordinate person that this reassignment is fair. They don’t object to it, they don’t have any problems with it. And of course, it’s not a silver bullet, right? That it’s not gonna prevent a claim in the future, but it will certainly help defend against that claim.
David Harmon: However, reassignment is not always available. That’s not always an option that can happen because that person, the subordinate, can be so integral to the team that is set up and led by the more senior person. It may not work out. So how do we handle that in that situation? How do we handle when it’s an integral person that’s key to a team and really, and there are projects that are going on and clients are fully engaged with that a subordinate person, how do we counsel clients along those lines?
Mariya Gonor: Well, my recommendation would be that you simply can’t have this, right? You cannot have a relationship where the subordinate is reporting to somebody that they’re in the relationship with. So even if it’s maybe a report, there’s gotta be another person who’s capable of making that person’s schedule, assigning clients to that person, or evaluating that person’s performance because again, you are then dealing with the situation where the other people on the team will start complaining or start believing that person is being treated more favorably. They’re getting better clients, they’re getting better shifts, what have you, you need to break up the reporting chain.
David Harmon: So I guess, in a situation where there are two people involved in a relationship. It’s, a senior to subordinate situation, especially that no one is indispensable. So that’s really the key thing to protect the company from the potential liability. You know, Mariya, another thing that has to be addressed in a romance agreement is what if, right? What if the relationship breaks up? Yeah. So it’s a consensual relationship. It’s, it’s all, you know, moving forward. There’s a romance agreement or love agreement, love contract that’s entered into, and then the relationship breaks up. Now what? So, there needs to be the contingency of what happens and a waiver or a release of liability of the company in the event that that happens. That’s a contingency that needs to be addressed.
Mariya Gonor: Absolutely. And your agreement should remind the participants in the relationship that, should the relationship end, they should report the termination of the relationship to HR as well.
David Harmon: Right. Because then the, the love contract essentially has been covering the romance while it’s an active romance. But if it ends it, frankly, it should also cover that. But that there’s a reporting obligation.
Mariya Gonor: Sure. And hopefully that’s not gonna end with a separation agreement. Let’s talk about employment strategies. Okay. Let’s talk about the employers first.
David Harmon: For employers have a clear written policy. Be clear about what relationships are permissible or not. Train managers on boundaries require disclosure, act immediately when concerns arise, and document decisions about what will happen. Post breakup.
Mariya Gonor: Or even before breakup, right. When we were talking about reassignment document the decision about reassignment or any other employment decision that we’re going to be making in the context of the relationship.
David Harmon: Well, I think in this context it is appropriate, as in every other context in the workplace and for the responsibility of HR is to document, document, document. That’s the critical maneuver. In any situation at this situation, romance in the workplace is no different. Okay, so what are our strategies for employees.
Mariya Gonor: With the employees. As always, first, you need to know what the company policy is, if you can. It’s generally a good idea to avoid relationship in the workplace, especially if you’re dating somebody who controls your job.
David Harmon: But I think that the reality here is that prohibition is not really a reasonable expectation to have.
Mariya Gonor: Based on the statistics that we’ve gone over in the beginning of this episode I think you’re right. But, so after you know your policy, you wanna make sure that you comply with your policy and then as always, keep your digital communications even with the person that you’re. In the relationship with completely professional because there is no expectation of privacy when you’re communicating through the company’s devices or the company’s electronic channels.
David Harmon: Correct. And after a breakup, be disciplined, be professional, and if you feel uncomfortable, as always, it should be that you can and should go to HR.
Mariya Gonor: Got to report. Absolutely, and if you want to learn more about how to report sexual harassment in the workplace or how to deal with sexual harassment in the workplace, click on the link below, where we have an entire episode dedicated to that topic.
David Harmon: Thank you.