The risks of romance in the workplace

​Happy Valentine’s Day!

Did you know that workplace romances are up, despite the rise of remote work? That’s according to a recent survey by the Society for Human Resource Management.

Apparently, COVID-19 stopped many things, but not office romances.

If you are reading this, you are probably concerned (or curious) about workplace romances. You are not alone.

The subject of workplace romances has been captured by the media for decades. Remember when George from Seinfeld gets fired for having sex with the cleaning lady on his office desk?

What about when Ron confronts Leslie and Ben about their relationship in Parks and Rec, and outlines the consequences if Chris (their boss) finds out?

How about the episode from The Office where corporate holds a meeting to discuss workplace romances?

Perhaps you remember Dwight and Angela's secret office romance which Phyllis later exposes? Or Michael's painful deposition for his relationship with his boss, Jan?

While these are all fictional representations in TV shows, they are not too far from reality. In fact, Barack and Michelle Obama met at work. And we can all agree that was far from a bad romance. Most recently, Jeff Zucker, the president of CNN, resigned over his undisclosed workplace romance with another top CNN executive.

Now, what does this all mean for you?

The risks

If you are an employer, you know that workplace relationships are common and come with their unique challenges. You may prefer to have a zero-tolerance policy in the workplace for office romances, but you know that is not feasible. First, that would disincentivize any employee to disclose that they are in a relationship with a coworker. Second, it would be difficult to implement.

With a zero-tolerance policy, you would likely end up breaching your own workplace policy by not implementing it in a consistent manner and making exceptions where you see fit.

Workplace romances are not inherently bad. However, they can be problematic for three main reasons:

• There’s a potential for workplace harassment complaints.
• There’s a potential for conflicts of interest.
• There’s a potential for a toxic work environment.

First, employers are obligated to provide a safe and healthy work environment for all employees. This means ensuring that the workplace is free of harassment and discrimination. Often, the line between flirting and harassment can be blurred – person A might be thinking they are engaging in harmless flirting with person B, whereas person B is actually being harassed and subjected to a toxic work environment. Employers have an obligation to conduct a workplace investigation when they know or ought to know of harassment, even if an employee has not filed a formal complaint.

Second, the workplace relationship may be incompatible with the employees’ job duties. For instance, if person A in the workplace relationship is person B’s direct report, that would give rise to a conflict of interest. Even if the reporting relationship is indirect, that can still lead to a conflict.

Third, while most workplace romances will be benign, they do have the potential to create a toxic work environment. For example, if two co-workers break up and it is a messy one, the aftermath of the breakup might end up creating a toxic work environment for not only the two people involved but others within the workplace.

But don't worry: While your employees may end up being caught in a bad romance, there are steps you can take to protect your organization, maximize your rights and flexibility, and minimize any potential disruptions and liability.

Best practices

First and foremost, employers should have clear policies in place against bad romances. What does this mean in practice? Employers should ensure there is a policy against not only workplace harassment, but also a policy requiring disclosure of any real or potential conflict of interest, along with examples of what a conflict of interest might look like.

In addition, consider whether you need to have a policy regarding workplace relationships in particular (for example, forbid certain types of relationships, such as those between employees with reporting duties, and/or require employees to disclose any workplace romances to human resources). The consequences of breach of policy should be clearly outlined.

Second, employers should clearly communicate such policies to employees, train them on the policies as well as reporting procedures, and ensure the policies are applied in a consistent manner. Where necessary, employers should conduct workplace investigations.

Further, employers would be wise to take proactive steps to avoid allegations that a relationship is not consensual. How? You can meet with both parties separately to document whether the relationship is actually consensual.

And, lastly, remember that as an employer, while you have certain legal obligations, you are also maintaining a delicate balance between retaining top talent, minimizing disruptions, and generating revenue. A short and quick fix (such as sweeping it under the rug) may save you time in the short term, but has the potential to expose your company to substantial damages, a bad reputation, and a loss of employee morale. Before deciding on how to proceed, consider the long game you are playing.

For more insights on workplace romances, check out Rudner Law’s Fire Away Show on Feb. 15, which is covering the topic.