When Office Love Goes Bad

In October 2000, Robert Barbee, national sales manager for Household Automotive Finance Corp., began dating a member of HAFC’s sales force. Two months later, the company’s CEO warned him that his choice of partners was "a bad idea." Company policy stipulated that if a supervisor wanted to have a relationship with any subordinate, it was his responsibility to bring it to management’s attention "for appropriate action, i.e., possible reassignment to avoid a conflict of interest."

    But when Barbee was asked about the nature of his relationship with Melanie Tomita in March 2001, he wasn’t given an option to transfer. He was told that if he and Tomita didn’t discontinue their relationship, one or the other would be terminated. Barbee informed his superiors that both he and Tomita wished to stay on at HAFC. That seemed to be that–until the CEO discovered that Barbee had used tickets given to him by a client to take Tomita to a basketball game.

    Barbee was fired. He sued HAFC on the grounds that the company had violated his right to privacy guaranteed by the California Constitution. The appeals court decreed that Barbee had no reasonable expectation of privacy, and affirmed the right of employers to try to avoid sexual-harassment claims and even the appearance of a conflict of interest by having a dating policy. An HAFC spokesman declined to reveal how much the legal victory had cost the company, but the Barbee case clearly illuminates the problems that employers face when they use dating policies to exclude Cupid from the cubicle. Having rules is no guarantee that they will save employers money or court time. Whether companies should even try to regulate workplace romance or pressure employees to sign "volitional dating agreements" to indemnify employers from future harassment charges is a matter of much philosophical, economic and legal debate.

    On one side is Robert Bell Jr., the San Diego lawyer who represented HAFC. "Employees want to be able to date, but when things get messy, they want the employer to protect them," Bell says. "They can’t have it both ways. Companies need to be able to implement policies that prevent sexual harassment, and the only way they can is through policies like these." Nonsense, counters David Strauss, the San Diego attorney who took Barbee’s case on contingency. "Everyone in this company dated," he says. "The essence of the case was that the boss didn’t like him. He was hired by [the CEO’s] predecessor and was doing a good job," but the new CEO used Barbee’s violation of the dating policy as an excuse to fire him, Strauss says. "There was never any evidence whatsoever that Barbee influenced anything at all regarding [Tomita’s] assignments or salary," he notes, adding that she didn’t report directly to him.

    The power of workplace attractions was exemplified last month in Fort Myers, Florida, when a woman and her ex-boss paid back the $35,000 in taxpayer funds that she had received earlier in a harassment settlement. According to the Associated Press, Julie Dalton, a chief deputy for Lee County property appraiser Ken Wilkinson, claimed that he had pressured her to have an affair, and then, after their relationship became public, pressured her to resign, which she did in March 2002. Dalton claimed that Wilkinson’s abuse of his position had caused her mental anguish and damaged her reputation. After a reporter saw them together over the holidays, Wilkinson wrote a check for $23,100 and Dalton cut a check for $13,100 to reimburse Lee County Risk Management, the county’s self-insurance fund.

Torturous tort
    Microsoft mogul Bill Gates and opera impresario Luciano Pavarotti married their own employees. But what happens when a philanderer dates and discards through the company ranks, leaving legions of angry, litigation-prone employees in his wake? Rationales for dating policies concerning supervisors, subordinates and especially clients, patients and vendors are understandable. Employers wish to avoid conflicts of interest, ethical trespasses and leaks of proprietary information. They want to make sure that the time at work is not spent flirting and sending romantic e-mails. They wish to assure other employees that the workplace is a meritocracy, not a patronage trough. And they are terrified of sexual harassment suits, which might arise when narcissistic executives abuse their power over underlings, or when subordinates interpret–correctly or not–any demotion, transfer or firing in the wake of a breakup as a form of retaliation, an illegal quid pro quo demand for sexual favors. Just defending a harassment case can cost at least a quarter of a million dollars, and losing one can cost millions, notes ArLyne Diamond, owner of Diamond Associates, a management consultancy in Santa Clara, California.

    The gossip and distraction generated by an explosive sexual harassment case can cause a temporary 20 percent dip in productivity, Diamond adds. Should the case make the papers and the evening news, adverse publicity can dampen profits by as much as 30 percent. Not only are women more likely to be the complainants in sexual harassment cases, but they also make up about 85 percent of the nation’s consumer base, even for men’s products, Diamond says. They may be put off by publicity implying that a company doesn’t treat women fairly.

    But allowing anecdotes and fear to force strict prohibition policies can spawn a flurry of other problems. The courts have repeatedly affirmed the right of employers to have dating rules, but no one has estimated how many valuable workers desert jobs with dating taboos so they can see their sweetheart without apology, or determined how much time and money is spent to implement and enforce rules against workplace intimacy.

    Lawyers estimate that no more than 10 percent to 20 percent of sexual harassment complaints involve executives in the workplace. And more often than not, liability has little to do with whether a company has a dating policy and everything to do with how a company responds once a complaint has been lodged. Some attorneys point out that dating prohibitions are largely unnecessary even as a smoke screen for firings because most workers can be fired at will. Surveys reveal that 69 percent to 84 percent of all companies–including Time Warner, AT&T and many universities, who affirm that they are among them–opt for the "no policy" route. Only 12 percent of respondents to an American Management Association survey published in 2003 reported that their company had a policy. Of those, 92 percent said that the only policy they had concerned relationships with subordinates. Whether employees know about their employer’s policy is another matter. Line workers often have no idea that one exists, or if it does, what it says.

    One reason for managerial ambivalence was revealed in the AMA survey. Thirty percent of the 391 managers polled admitted to dating a co-worker themselves. While a soured affair may dampen one’s ardor for reporting to the same place of employment as one’s ex, dating someone who shares the same profession turns out to be an excellent bet for lasting love: 44 percent of the dating managers wound up marrying their colleague, and another 23 percent became involved in a long-term relationship. Below the management level, the numbers are huge. In a 2003 Vault.com survey, 59 percent of 1,118 employees polled admitted to dating a colleague. Another 17 percent said they would like to.

    Of the 14,396 harassment complaints brought to the EEOC in fiscal year 2002, 47 percent were dropped because investigators could find "no reasonable cause" for the charges. The EEOC doesn’t break out cases that arise from dating situations and takes no position on whether employers should have dating policies, says EEOC assistant legal counsel Dianna Johnston. "Sexual conduct only becomes sexual harassment if it’s sufficiently severe or pervasive that it creates a hostile environment. Asking someone out for dinner once or twice is not going to rise to that level. But if you ask and then take an adverse employment action because they said no, that would be unlawful retaliation." Courts tolerate a tremendous amount, as long as the company acts promptly, efficiently and in good faith once an employee complains, regardless of whether the victim dated the alleged perpetrator or not, Johnston says. "If they get involved and get it resolved early on, it goes away before it ever goes to court."

    While case law is scarce, what exists is largely pro-employer. It appears, in fact, that employees who engage in consensual affairs surrender a portion of their legal standing to sue. In a 1999 Florida case, the Dade County School District was held blameless for the harassment a male endured from a bitter ex-girlfriend. The court reasoned that it was not his gender that had caused his ex-girlfriend to pepper his wife and son with phone calls, lobby students to claim that he had sexually abused them and curse him out in public. It was his "termination of the intimate physical and emotional relationship she shared with him."

    That’s not all. "If the perpetrator is really important and high up in the company, I don’t care what policy you have. They’re untouchable," Strauss says. "Without this person, the company would take an economic hit, so they coddle him." It is exactly this tendency to create a "protected class" of harassers that is likely to put a firm in court. "If you want to get away with as much as you can, that’s a problem," Johnston warns. Employers that "have a neutral procedure for investigating these complaints" that employees scrupulously follow have little to worry about.

Love is in the air
    Some progressive and profitable companies that take a charitable view of intra-office intimacy say that honorable intentions and common sense are the only tools they need as guides. When Greg Crum, 56, vice president of flight operations for Southwest Airlines, and Michelle Crum, 45, Southwest’s assistant manager for recruitment training for in-flight operations, were married in October 2000, "we had 127 guests, and 110 were Southwest employees," including CEO Herb Kelleher and COO and president Colleen Barrett. "The wedding was just one big Southwest party," Michelle says happily. Of Southwest’s 35,000 employees, about 2,000 are married to each other. Its ticker symbol is LUV, an acknowledgment of both its home base at Dallas Love Field and its huggy corporate culture.

    In addition to being allowed to date, employees are even permitted to ask out passengers just as long as they’re polite and don’t do anything shifty like use a company database to mine personal information. "We encourage nepotism," declares spokeswoman Linda Rutherford. So how does Southwest deal with the oft-cited situation of a boss dating a subordinate? "Each supervisor handles that differently," according to "what is the right thing to do for the company," says Lorraine Grubbs-West, director of field employment. "We give our frontline leaders a lot of empowerment. Each situation is so different and individualized, we want to make sure the leader can consider all the extenuating circumstances and facts."

    In 11 years, Southwest has fired two men for "inappropriate conduct," Rutherford says. While it has had a handful of complaints about unwanted attentions, "nothing has ever risen to a court level" because the situations were all promptly and thoroughly investigated. Intimate relationships at Southwest, when they occur, are more likely to be volitional than exploitative, in part because "we invest an inordinate amount of time and resources to get the right people in the door," who will treat customers, co-workers and subordinates sensitively and respectfully, Rutherford says. Detailed pre-employment screenings are designed to identify individuals who have a reverence for the rights of others, common sense and a willingness to work cooperatively.

   Meredith Corp., a publicly held media and marketing firm of 2,800 employees in Des Moines, Iowa, doesn’t see the need to become involved in the personal lives of its employees unless asked to intervene. The company has ethics and conduct codes and a business policy that negate the need for a dating policy to address conflicts of interest or leaks of proprietary information, says Ken Mishoe, corporate director of personnel.

    Meredith employees are a very sophisticated lot who "know automatically" without being lectured that dating a subordinate could call their objectivity into doubt. But sometimes, a reorganization or promotion can unexpectedly put one person in the position of managing a romantic partner. "If we know about it, we talk to them, but historically, they’re always the ones to bring it up," Mishoe says. Meredith strives to accommodate couples. For a limited time, an employee might even report to a person with whom he or she is romantically involved, but both parties know "that we’re going to work with them over time" to eliminate any conflict, or perception of conflict, that might arise.

    The fallout from breakups is no big deal, Mishoe says. One woman appealed to human resources, complaining that she felt uncomfortable because a colleague she no longer wished to date continued to pursue her. "We sat him down and said, ‘Don’t ever ask her out again. Don’t talk to her. Don’t even go to her to apologize,’ " Mishoe recalls. "It was hard on him, but he did it. We followed up with her to make sure."

Workforce Management, February 2004, pp. 36-40 — Subscribe Now!