Expert Q&A on Workplace Romance

Christine Amalfe, is a member of Gibbons, Del Deo, Dolan, Griffinger & Vecchione’s Litigation and Employment and Labor Law Departments. She has been extensively involved defending claims under the State and Federal Employment Laws, including claims for sexual harassment, race discrimination, sexual discrimination, disability discrimination and the Conscientious Employee Protection Act. She has also been involved in matters alleging breach of express or implied employment contracts, intentional infliction of emotional distress, battery, breach of fiduciary duty, and violation of restrictive covenants.

Ms. Amalfe has represented corporate defendants as well as individual officers, directors or employees who have been sued personally for sexual harassment, negligent supervision, fraud or negligent misrepresentation. She has negotiated termination severance packages, drafted employee handbooks and employment agreements, and has provided employment and other counseling to clients on a regular basis. She has consulted with clients regarding diversity initiatives and audits and has conducted sexual harassment training. She has consulted with clients regarding diversity initiatives and audits and has conducted sexual harassment training.

Q: A sales representative complains that her manager is having a romantic relationship with another sales representative and as a result the other sales representative is getting preferential treatment, including better leads on prospective buyers. Do you have a duty to investigate?
A: Yes. If the allegations are true, you must separate the two involved in the romantic relationship so that the manager no longer has any control over the assignments, promotion or pay of the sales representative he is involved with. Although many courts confronted by this issue have ruled that “isolated” instances of paramour favoritism do not violate federal and state laws barring sex discrimination, contrary decisions have been reached where workplace favoritism is so widespread that it creates a hostile work environment.

Q: Should you also separate the manager from the complaining sales representative?
A: Yes, if possible. Retaliation claims often stem from situations where an employee complains about his/her supervisor and the two continue working together because if the supervisor takes any adverse action against the subordinate, the subordinate will view it as retaliation regardless of whether it is performance based. Moreover, juries often view retaliation claims as more serious than the original claim. The best option is to separate all involved. However, if you move the complaining sales representative, make sure it is not a less desirable territory, product, etc. because that too could be viewed as retaliation.

Q: How can you attempt to prevent preferential treatment in the workplace?
A: Draft an effective nepotism policy which states that family members and those involved in a close personal relationship with an existing employee will not be hired. In addition, consider drafting a policy which acknowledges that workplace romance may occur. This policy should require the senior person in any workplace relationship to disclose the relationship to human resources or be in violation of the policy. The company should also reserve the right to transfer one or both of the individuals if it turns out that they are in the same chain of command. This information enables you to staff employees so that preferential treatment can be avoided.

Q: What should I take into account when drafting a workplace romance policy?
A: Initially, you must consider the culture of your company. If your culture can accept workplace romance, draft a policy which allows it under the appropriate circumstances. If your culture will not accept workplace romance, draft a policy which prohibits relationships, but recognize that there probably will be employees who violate the policy. Also, decide what action the company will take for violations of the policy and realize that this may mean dealing with employees who choose to resign rather than terminate their relationship. The policy should be applied in a non-discriminatory fashion and therefore if some of your best employees are involved, it will mean disciplining or terminating them pursuant to the policy. Consider whether you want to lose well-trained, performing employees in today’s labor shortage market.

Q: Why would a company choose to allow or condone workplace romance?
A: Companies are simply accepting the reality of work life in the 1990’s. Romance and relationships will happen whether they are prohibited or accepted. The difference is that if they are prohibited, they will most likely be secret and the parties involved will deny the existence of the romance in order to protect their jobs. It then becomes difficult for management to make staffing and supervisory decisions. If relationships are allowed, they will be more open and you will be able to staff so that no preferential treatment occurs. You can also interview the participants to make sure the relationship is voluntary and not coercive, thereby protecting the company from a potential sexual harassment claim in the future.

Q: How can you protect the company from a workplace romance forming the basis for a sexual harassment case?
A: Many sexual harassment cases arise from workplace romances after one party seeks to terminate the relationship. The other party to the relationship may seek to continue the romance by making continued sexual advances and overtures. If the subordinate employee in the relationship terminates the relationship, the more senior employee may retaliate against the more junior person through work assignments, salary increases and promotion opportunities. Certainly, the junior employee will claim any adverse employment decision by the senior employee related directly to the termination of the sexual relationship. You can protect the company by implementing a policy which requires parties involved in a workplace relationship to disclose that relationship to management or human resources. You can then make appropriate staffing decisions to assure that the more senior person involved has no control or influence over the work assignment at any time. You can also require employees to advise the company if the relationship terminates or if it changes to an involuntary situation. This can protect the company if a claim is later made by an employee that the relationship was forced or coerced thereby forming a claim for sexual harassment.