#MeToo’s Effect on Workplace Dating

In response to the #MeToo movement and the wave of sexual misconduct and harassment allegations over the last year, employers are grappling with how to manage workplace dating. Even though a recent CareerBuilder poll shows that office romance is at a 10-year low, with 36 percent of employees reporting dating a co-worker, office romances remain fraught—perhaps more now than ever—with potential risks for employers and employees.

Workplace dating can lead to claims that the relationship, when it ends, was coerced. It can also raise concerns by other employees that a paramour received preferential treatment to the detriment of others, lowering department morale, and possibly leading to a hostile work environment claim. Employers are responding to these concerns by implementing new policies and practices to protect themselves (and their employees) from the legal and practical implications of workplace dating, including sexual harassment and hostile work environment claims.

Many companies already prohibit supervisors from asking out subordinates. And some organizations attempt to forbid workplace romance altogether. For example, in February 2018, the US House of Representatives voted to prohibit sexual relationships between lawmakers and their employees. Although outright prohibition against any workplace romantic relationship might seem like the best way to avoid future potential sexual harassment complaints that might arise after the relationship ends, a ban on all workplace dating is not always a realistic option in the employment setting. As the CareerBuilder statistic shows, more than a third of employees are in a romantic relationship with a co-worker. What, then, are some options for employers to help them both confront this dating reality while also avoiding the potential legal pitfalls that arise after the relationship sours?

Many companies have started implementing creative ground rules for workplace dating. Alphabet (Google’s parent company) and Facebook have embraced a policy that allows employees to ask a co-worker out once. If they are turned down, or receive an ambiguous answer such as “I’m busy,” they cannot ask again. This policy encourages affirmative consent and prohibits repeatedly asking out a co-worker, which the Equal Employment Opportunity Commission has opined can constitute harassment. This policy, however, stops short of addressing issues that arise if a romantic relationship develops from asking a co-worker out, and then the relationship subsequently sours. In this case, the employer still faces potential liability if one of the employees alleges sexual harassment or a hostile work environment.

Some employers are adopting love contracts to address these concerns. A love contract is an agreement signed by co-workers who are dating that states their relationship is voluntary and consensual and that they are aware of the company’s rules for workplace dating. The primary purposes of a love contract are to publicly acknowledge the relationship, to maintain a workplace free of the perception or actual favoritism, and to avoid later claims that the relationship was coerced. 

The contracts vary by employer, but typically, they outline the prohibition against sexual harassment and forbid the parties from retaliating against each other if their relationship ends. Many love contracts also require the signatories to agree that their relationship will not create a conflict of interest and, if it eventually does, the parties are obligated to notify Human Resources and possibly transfer or be demoted to resolve the conflict.

Love contracts do not offer employers a guarantee that a workplace relationship will not result in potential liability. However, these contracts demonstrate to employees that their employer is open to addressing potential professional problems resulting from the relationship. Love contracts also show that the employer proactively informed employees of the workplace rules surrounding the relationship.

Savvy employers are implementing new tools, including love contracts, to proactively avoid potential liability resulting from workplace relationships. If you are an employer considering how to navigate romantic relationships in your own workplace, you may want to consider some of the options discussed above.

Author: Caitlin Emmett, Associate.

The Maier Law Group helps companies ensure that their policies and practices comply with the relevant workplace regulations.  We also offer tailored sexual harassment prevention training for companies. Please contact us at info@maierlawgroup.com for more information.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.