A Month for Love: Romance at Work

PDF

If television has taught us anything, it’s that romance can blossom in the workplace, especially when colleagues spend a significant amount of time together. Sam’s romance with Diane, then later with Rebecca were popular story arcs on Cheers. Jim and Pam delighted audiences as their relationship evolved on the Office. And we have all lost count of the couples formed and dissolved on Grey’s Anatomy. While entertaining, these stories often ignore the significant risks that office romances can cause to your company’s culture and potential legal liability. 

February is a month for love (and Valentine’s Day celebrations), and a good time for employers to implement or review policies governing workplace relationships. The Society of Human Resources Management (SHRM) recently released the results of its annual workplace romance survey, which indicated that more than half of workers in the United States have been in or currently are in a workplace romance. Remarkably, the survey also indicated that more than half of the 216 managers surveyed viewed these romances as having a positive impact on their team dynamics.

Evolving Risks

Workplace relationships can be challenging for employers to manage. Some companies try to ban such relationships altogether. Others use consensual relationship agreements (sometimes called “love contracts”) to try to manage this risk, and others simply require disclosure by one or both employees involved. Far too many hold their breath and hope for the best with no guidance for employees at all.

This week, international news outlets widely covered a sexual harassment lawsuit filed against the Australian billion-dollar tech startup Dovetail and its CEO, Benjamin Humphrey, by one of the company’s lawyers—Bethany Lo Russo. An article in the Australian Financial Review excerpts text messages allegedly from Ms. Lo Russo to Mr. Humphrey, including “I think everything we do is so nice haha ... It felt very boyfriend-y… I’m obsessed with you... and talking with you... and being with you... and kissing you.” Mr. Humphrey acknowledged an error of judgment in engaging in a workplace romance but emphasized that “There is a large body of text messages, photos, and voice notes that speak to her love for me, and her enthusiasm for the relationship and intimacy we shared.”

Mr. Humphrey’s lawyers told the Financial Review that Ms. Lo Russo “reacted badly” when Mr. Humphrey brought his girlfriend to a company party several months after his relationship with Ms. Lo Russo ended. Ms. Lo Russo’s claims against Mr. Humphrey illustrate how romantic relationships pose different risks at different phases of the relationship.

One primary concern is whether the relationship is really consensual, a question that has become far more complicated as focus has increased on the effects of power imbalances. For example, Monica Lewinsky has always maintained that her sexual relationship with President Bill Clinton was consensual, but she wrote for Vanity Fair in 2018 that she now sees “how problematic it was that the two of us even got to a place where there was a question of consent. Instead, the road that led there was littered with inappropriate abuse of authority, station, and privilege.” The relationship between Lewinsky and Clinton would be viewed very differently if it occurred today, so it is more important than ever for companies to be aware of all adverse risks of office romances and adopt practices to manage these risks.

Even assuming a relationship is consensual, once it is underway, it can create distraction at work, present conflicts of interest, and damage employee morale. Courts in the United States have generally rejected a “paramour preference” theory (in which an employee asserts that a supervisor’s relationship with a romantic partner causes adverse action against other employees) because it disadvantages both men and women. However, consensual relationships can raise quid pro quo risks if other employees claim they were disfavored because they rejected romantic or sexual advances that were accepted by the consensual paramour. These risks compound the potential that one person in the relationship may later claim it was not consensual.

Should Your Company Adopt a “Love Contract” Policy to Require Employees to Disclose Romantic Relationships?

Consensual relationship agreements, which have been colloquially referred to as “love contracts,” represent one of the most common ways that employers can manage the risks associated with office romances. These agreements require employees to disclose their romantic relationships with their colleagues. In so doing, these agreements provide written confirmation that the relationship is voluntary and consensual at the time of the disclosure. The disclosures also allow an employer to take action, if necessary, to protect against conflicts of interest where one romantic partner can influence another’s career progress, performance assessment, discipline, or compensation. Love contracts may not perfectly insulate an employer from a later sexual harassment claim, but they can be valuable evidence in defending such claims.

Implementing these agreements requires careful consideration. First, at what point are employees expected to disclose that their professional relationship has evolved into a romantic one? Many romantic relationships, particularly between individuals who first meet in professional settings, evolve slowly and in a nonlinear fashion. This evolution can make it difficult for employers and those involved in office romance to determine exactly when they are required to disclose their relationship. Second, enforcing these policies can be very challenging for human resources departments that are already busy managing other aspects of employee relations. Consistent and equal enforcement of these policies is key—they can do more harm than good if exceptions are made for the C-suite or high performers.

All companies, especially those subject to sexual harassment laws, should have robust anti-harassment policies and procedures in place. Generally, larger organizations are better served by disclosure requirements and consensual relationship agreements. Small, family-owned businesses and start-ups are more likely to begin with family members or romantic partners working together, so transitioning to a policy requiring disclosure may require careful attention to existing relationships. In deliberating whether to require disclosure and documentation of consent, employers should begin by considering:

• What existing office romances are you already aware of?
• Are there problems or risks you are hoping this new policy will help remediate?
• Who will you require to disclose the relationship and at what point in the relationship will such a disclosure be required?
• Is your company committed to uniformly enforce such a policy at all levels of the organization?

Cupid’s arrows eventually strike in most work environments. Proactive planning and management mitigate risk far more effectively than reacting when an office romance goes awry.

Fortunately, Maynard Nexsen’s employment team is here to help. We can analyze the specific risks that office romances could cause to your company and help you institute policies to proactively remediate these risks.