Don't establish a policy prohibiting it, and don't ignore gossip that it exists. Do provide sexual harassment training—and buy employment liability insurance
There's no doubt that each year, lots of people fall in love with their co-workers or their bosses. Other employees typically get swept up in workplace romances through the gossip mill. But while they can't be prevented, office liaisons are not always a joy for business owners. And they're more difficult to handle when they occur at small companies, says attorney Mark Kluger, who chairs the labor and employment practice at Mandelbaum Salsburg in West Orange, N.J. He spoke recently to Smart Answers columnist Karen E. Klein about workplace relationships from a decidedly nonromantic perspective. Edited excerpts of their conversation follow. You advise your clients against establishing a written policy prohibiting workplace romance. Why? Employers cannot control human nature, so a workplace romance policy is unenforceable. And if you establish one, it sends a negative message to employees about your company's willingness to impose itself into their personal lives. The other thing is that you don't want to create a Romeo and Juliet situation. If there's a policy against workplace romances, people will feel they must lie and sneak around, and that's the last thing you want. So what should an employer's reaction be if a romance develops in the office? If a workplace relationship develops between a supervisor and a subordinate, there's a definite need for the employer to step in. But when it's co-workers who have a relationship, the employer only needs to be involved if it becomes a distraction. Issues may arise, such as public displays of affection or the couple spending inordinate amounts of time together during work hours. Their co-workers may feel uncomfortable if there is sexual banter, and that can create a hostile work environment. That's a legal term that gets into the wheelhouse of sexual harassment. Does an employer have a legal obligation to get involved at that point? Yes. I teach sexual harassment training, and I make clear to management that if it's heard through the grapevine, the employer must look into it. Gossip is recognized by the courts as a means of information to the employer. If he knew of some behavior, or should have known because it was all over as gossip, he could be liable. What is the best course of action for the employer to take? Don't blow the situation out of proportion. If you start sounding punitive right away, things can deteriorate quickly. Then you've got resentment, anger, and bad morale extending to the entire workplace. Most problems can be easily diffused with effective communication. You have a meeting with the couple and tell them you're happy for them, but they need to cool it in the office. More often than not, that approach works. Once they understand that their jobs may be on the line if they don't comply with your instructions, people tend to comply. What happens if they don't? Well, that's certainly a legitimate reason for the employer to split people up so they don't work in the same department or building. This can be a problem for smaller employers, because there are typically fewer places to move people. The employer has to be careful not to punish one party or promote them because of this relationship. Often it's the woman who's moved out, and that could be grounds for gender discrimination if she feels she's being demoted. You want to come up with a game plan that works for everybody and try to create a buy-in from the two employees. What other issues make this situation more difficult for small business owners? It is tougher in a smaller work environment because there are often fewer options. And it's expensive for small business owners to insure against it by purchasing employment practices liability insurance. We always recommend that they do have that, because it covers employee lawsuits and attorney's fees. Without it, small firms can be wiped out even if they've done nothing wrong and they win their cases. You mentioned relationships between supervisors and subordinates. Do you recommend a written policy against those? I really don't, for the same reasons we talked about. But I do recommend sexual harassment training for managers, where we show them how difficult it is even if the relationship is as amicable as possible. I want managers to know how much danger these relationships put them and the company in. Of course, that doesn't prevent someone falling in love with a person they supervise. No. And people should not immediately have a visceral reaction that that kind of relationship is wrong and should stop. We all know plenty of people who met their spouses at work or had relationships with the boss. The main problem, though, is that if a supervisor and subordinate have a love relationship, their work relationship will immediately be complicated by the perception of favoritism. What are the legal pitfalls? Any supervisor in a romantic relationship with a subordinate is immediately vulnerable to claims of quid pro quo sexual harassment, where an employee can claim she was offered a raise or a promotion if she sleeps with her supervisor. Most quid pro quo lawsuits are he said/she said cases, which get to a jury almost every time. It's a dangerous position to put the company in, and small businesses are all the more vulnerable because the manager may be the owner or a close family member or friend. What should an employer's response be to the supervisor/subordinate relationship, if one develops? I insist that clients transfer one of the employees—usually it's the subordinate—so they are not reporting to each other. You have to make it happen fast, because these relationships are usually kept secret for as long as possible. You still want to have a conversation and get both people in the room—and again, there's no way you can tell people to stop seeing each other. If you do, the relationship will go more underground, and the parties will feel more angry and upset. If the relationship ends, are there still liabilities for the company? Yes. The relationship may end with the two of them being friends. But later, if that supervisor gives the subordinate a bad performance review because she's no longer doing a good job, she can claim that her reviews were fine when she was sleeping with him. Now that she's not, she doesn't get the raise. The subordinate employee can really control the scenario at that point. And other employees can sue for sexual favoritism. "My co-worker's sleeping with the boss, and now she's getting all this great work. Everybody knew about it, so the owner of the company had to have known." That's a claim that will get past the smell test for sure. People get crazy when these situations occur. Is the supervisor/subordinate relationship still mostly male/female? The world hasn't changed all that much. It's more prevalent than it was 10 or 20 years ago to have a female supervisor and a man subordinate, but it's obviously just not as common. But when men do make these claims, the law treats them identically. Same-sex sexual harassment is treated exactly the same.