Laws prohibiting discrimination based on gender and sexual harassment have been on the books for a long time. The same can be said about policies in employee handbooks that prohibit women from being treated negatively because of their gender.
However, as the recent #MeToo movement has demonstrated, people have not always respected these rules and policies. There continue to be incidents of harassment in the workplace, and some of it goes unreported for fear of reprisals.
Now, more than ever, you need to double down on educating employees about appropriate workplace conduct, including not only the relevant laws but also the culture your organization wants in the workplace.
The reality is that individuals likely spend more time at work than anywhere else. They bring their personal norms, biases and stereotypes with them. Without clear guidelines and their consistent reinforcement, inappropriate conduct may creep into your workplace.
This is especially true when it comes to dating in the workplace. Is the relationship consensual? Does one person have control over the work of the other? Are there improper public displays of affection? Did someone use their position to adversely impact another after the relationship ended? Employers must grapple with these and many more questions.
You can choose to ignore the reality that your employees are dating. However, this runs the risk of dysfunction in the workplace and possible litigation if a relationship ends badly.
The better approach is to address the issue head on. For example, most employers already prohibit individuals from supervising someone with whom they may be in a relationship. However, an increasing number of employers also use “love contracts” to address these situations. These are consensual agreements or acknowledgements that remind the employees at issue of your anti-harassment and discrimination policies, as well as the process for reporting any inappropriate behavior.
These “love contracts” not only outline proper conduct and your expectations as an employer, they also help to safeguard you from future litigation if the employees did not report any misconduct. While the terms of such contracts will differ depending on the circumstances, they usually provide the following:
- Confirmation that the relationship is consensual.
- Acknowledgement that both employees understand and have received copies of your sexual harassment policies.
- Notice of the appropriate contact person in the human resources department who is available if anyone feels that the relationship is adversely impacting their work.
- Notice that neither employee can supervise the work of the other.
- Notice that the employees should avoid public displays of affection while at work.
- Acknowledgement that, should the relationship come to an end, neither employee will do anything at work to retaliate against the other employee.
Truth be told, most employers have very little desire to pry into the personal relationships of their employees. The employees themselves would likely prefer to keep the relationship private. But people will continue to date in the workplace, and the failure to properly address the potential repercussions could result in a fractured workplace and ugly litigation. “Love contracts” at least help to identify and manage the potential issues related to office romances.
Clarence Belnavis is a partner in the Portland/Vancouver area and Seattle offices of employer law firm Fisher Phillips. He is a trial attorney with a primary emphasis in employment litigation, including disability, racial and gender discrimination, retaliation, sexual harassment, and wrongful discharge. He also represents employers in wage and hour claims, employment class actions and traditional labor matters.
