When love comes calling: Workplace romances are on the rise and, yes, it really does matter to your business in the #MeToo era

Beginning in 1986, the United States Supreme Court has placed the duty of ending sexual harassment in the workplace on the employer. As a result, most companies have concerned themselves with policies that prohibit unwelcome sexual harassment. Nowadays, however, conscientious companies are wise to review their codes of conduct and policies against sexual harassment and add consensual dating relationship rules to their anti-harassment policies.

Last month, the board of directors of McDonald’s terminated its CEO, Steve Easterbrook, for engaging in a consensual relationship with an employee. The year prior, Intel fired its CEO, Brian Krzanich, after an internal investigation found that he had engaged in a consensual relationship with a subordinate, which Intel said violated its anti-fraternization policy. Krzanich and Easterbrook join a growing list of executives forced out over relationships with employees, even if they are “consensual,” as more brand-aware companies adopt rules against dating subordinates in the wake of #MeToo complaints.

Executives are not the only ones engaging in consensual relationships at work. Earlier this year, Forbes magazine reported that 58 percent of employees have engaged in a romantic relationship with colleagues. And it’s not just the younger employees. According to Forbes, a surprising 72 percent of over-50-year-olds have been romantically involved with a co-worker. Almost half (41 percent) of employees reported that they did not know whether their company had a policy regarding office romances.

If more than one-half of the workforce has engaged in workplace romance, it is critical that the organization guide employees on how to go about pursuing romance in a professional and appropriate manner. It is imperative now for employers to get involved because indiscretions at work can be disastrous for a company’s brand integrity, lead to legal claims and decimate corporate culture and values.

As a result of social media, office romances (and claims of sexual harassment and/or favoritism) can be disastrous for a company’s brand integrity. Last year, hundreds of Google employees walked out in protest over how Google executives handled sexual harassment claims, chronicled their stories on social media and garnered international headlines and media attention. In the case of McDonald’s, Easterbrook readily conceded that his relationship with an employee demonstrated poor judgment and violated company policy against manager relationships with employees. 

“This was a mistake,” Easterbrook wrote in an email. “Given the values of the company, I agree with the board that it is time for me to move on.” Still, Easterbrook’s case dominated headlines immediately following his termination and McDonald’s shares sank as much as 3 percent, wiping $4 billion from the company’s market capitalization, the day after his termination.

In addition, consensual romantic and sexual relationships in the workplace are often the beginning of sexual harassment charges and lawsuits, especially when they occur between a supervisor and a subordinate. What may have begun as consensual between a supervisor and a subordinate, can easily move into a quid pro quo situation where promises of benefits or threats of harm are offered in exchange for favors, dates or the condition that the relationship continue. Often, the evidence will come down simply to one person’s word against the other, which results in protracted and very public litigation.  

In cases of quid pro quo sexual harassment, the company is strictly liable for the supervisor or executive’s purely personal conduct. If the relationship between the superiors and the employee ends or creates a hostile environment for others, or an environment where the subordinate involved in the relationship receives preferential treatment and assignment, then it may form yet another basis upon which a sexual harassment can be filed.

Workplace romances can decimate a corporate culture, especially when executives or supervisors, who utilize power and decision-making authority in the workplace, date employees. Employees want a fair opportunity to succeed and advance and these relationships chip away at a culture of professionalism and neutrality. An executive or superior engaging in a relationship with a subordinate compromises the  appearance of neutrality and does little to assure the rest of the workplace (not engaged in a relationship with the boss) that they are not being deprived of fair treatment and promotion opportunities earned on their merits. For instance, it is difficult to give an impartial performance appraisal to someone with whom you are involved in a sexual relationship. Assignments may be made based upon out-of-state travel so the executive and subordinate can “escape” together on business. Relationships at work, especially between a superior and a subordinate, create a culture where those inclined to prey on others are emboldened, and those not willing to reciprocate are alienated.

To protect your brand, corporate values and litigation risks, it is the employer’s duty to make sure that everyone feels safe and comfortable in the workplace and that means confronting workplace romances directly, transparently and immediately. 

Employers Should Enforce a Strict Policy Prohibiting Dating and Romantic Relationships Between Superiors and Subordinates

An all-out ban against dating or any kind of romantic relationship between employees is largely not enforceable and not very realistic in light of how many people have or are engaged in workplace dating.

There is one situation where strict rules against dating, as in the case of Intel and McDonald’s non-fraternization policies, where prohibiting an executive (or supervisor) from dating an employee, makes sense. Allowing executives and superiors to date employees opens the door to sexual harassment complaints (even if the relationship was once considered “consensual”), indiscretion and brand degradation. It is nearly impossible to protect against favoritism in these situations and nothing corrodes a professional culture faster than sexual favoritism. The only way to reduce potential harm to corporate values and culture, professional reputation, productivity and legal liability is to prohibit dating in these situations and enforce a zero tolerance for violations of this strict policy.

Employers Should Adopt a Romance Policy that Sets Forth Expectations and Requires Dating Co-Workers to Agree to Terms of Professionalism in the Workplace

With romances between co-workers, the employer needs to provide a policy to guide and teach employees to professionally pursue workplace romance. The employer should provide first a policy of disclosure and transparency, requesting dating co-workers to come forward and inform the human resources department of their relationship. In addition, the policy should articulate simple rules of conduct, reminding the parties how to handle themselves at work following a disagreement or breakup. The policy should also address what will happen should a conflict of interest arise (or if the parties are unable to work together following a break-up) and what to do if there needs to be a transfer.

In addition to disclosure and a romance policy, the dating co-workers should agree to a “consensual personal relationship in the workplace” agreement that is literally a contract that sets forth that the relationship is voluntary and consensual, that all forms of sexual harassment are prohibited, that the couple agrees that their relationship will not have a negative impact on their work, that the couple will not engage in public displays of affection or other behavior that might create a hostile work environment for others, what to do in the event of a break-up or if one party needs to transfer, conflicts of interest, an agreement against retaliation following a break-up and an overall agreement to pursue the relationship professionally while at work.

The policy and consensual relationship agreement are HR’s tools to help guide employees. These tools provide HR with an opportunity to be transparent and discuss outcomes. While neither the policy nor the agreement will prevent all problems, it does authorize HR to intervene to help the couple manage difficult situations (i.e., reminding the couple that they agreed to conduct themselves professionally at work following a break-up, no matter how sour). In addition, it provides HR an opportunity to discuss consent and review the company’s sexual harassment policy with both parties so that a workplace romance does not lead to a sexual harassment claim down the road.

It is imperative that employers get involved in personal matters of the heart that might have once been considered as “not our business.” When it comes to executives or superiors dating subordinates, there is simply too much at stake to allow such relationships in the workplace. When it comes to co-workers, the employer needs to articulate its expectations, set up a safe environment for everyone and require that dating co-workers pursue their relationship with professionalism.

Katheen D. Weron is an employment lawyer with Manning Curtis Bradshaw & Bednar PLLC in Salt Lake City where her practice includes drafting workplace romance policies. She graduated from the University of Utah’s S.J. Quinney College of Law.