In the words of Maya Angelou: “Love is like a virus. It can happen to anybody at any time.” Even, apparently, at work. Unfortunately, however, it cannot be denied: dating between coworkers can create problems for an employer, particularly when one member of the relationship is the other’s supervisor.
Problems that could (and often do) arise with intracompany dating include the following: (1) other employees could allege that one or both partners in the relationship are receiving preferential treatment from the other; (2) an employee’s judgment or ability to make objective decisions could be compromised by the effect of those decisions on the partner; (3) a workplace relationship that ends could affect the working environment of the entire office; (4) the employer could face potential liability for a sexual harassment claim if the relationship ends; and (5) the employer could lose a valued employee if the relationship ends. In an effort to avoid such problems, some employers choose to strictly prohibit employee dating.
Whether “no dating” or “antifraternization” policies are legal and enforceable is a matter of state and local law; no federal law on the subject exists. Washington, like most other states, does not have statutory law that directly prohibits or allows this type of policy. Further, it appears that no Washington court has yet addressed the legality of an employer’s “no dating” policy. Because Washington law does not expressly prohibit nonfraternization policies, a Washington employer should consider whether this type of policy makes sense for the employer’s particular company.
Regardless, an employer can take a number of steps when faced with an office romance to try to protect the company from the problems identified above. For example:
Have a clear sexual harassment policy. The employer should ensure that a companywide policy prohibiting sexual harassment is in place; it should state that sexual harassment is unlawful and violates company policy. Further, the policy should explain that it applies to all employees, and it should establish a reporting and internal complaint process to deal with allegations of sexual harassment. Finally, the policy should be clear that no employee will be retaliated against for making a complaint of sexual harassment. Once implemented, that policy should be followed whenever a complaint of sexual harassment is made.
Consider a policy limiting intracompany dating. The employer should think about a policy that limits, even if it does not forbid, intracompany dating. The best solution may be less extreme than a flat prohibition – it may be to prohibit supervisors from dating subordinates, or to prohibit employees in the same department from dating.
Enforce policies in a nondiscriminatory manner. Even if a “no dating” policy is legal, once implemented it must be enforced in a nondiscriminatory manner. It is especially important for the employer to make sure that the policy is equally enforced between the sexes. For example, a policy of transferring the subordinate employee could have an impermissibly disparate effect on females, since studies have shown that subordinate employees are more likely to be women.
Confirm that known relationships are consensual. Once a relationship is discovered, the employer should ensure that it is consensual. The employer should be proactive and consider meeting with each party, not to discuss the relationship, but to discuss the company’s policy on nonconsensual relationships and sexual harassment. The conversation must be documented.
Actively prevent post-relationship retaliation. If the relationship ends, the employer should monitor the situation to make sure that no inappropriate conduct or retaliation occurs. The employer should repeat the meet-and-confer process discussed above and should remind supervisors of obligations under state law, federal law and employer policy. Going forward, if one member of the relationship supervises the other, the supervisor should not be involved in decisions related to his or her former partner. Again, the conversation must be documented.
Consult experienced employment law counsel. If the employer is unsure how to handle a particular situation, or simply has a “bad feeling” about the relationship in question, it may be prudent to contact the company’s outside employment counsel for advice. Appropriate preventive action can save the company from expensive litigation down the road.
Joseph Vance and Kathryn Rasmussen are employment litigation attorneys in Miller Nash Graham & Dunn’s Vancouver office. They can be reached by email at joseph.vancePC@millernash.com or kathryn.rasmussen@millernash.com or by phone at 360.699.4771.
