Romance in the Workplace

Romance in the Workplace


With Valentine’s Day upon us and love in the air, we would like to offer an overview of potential legal issues that may arise from workplace romances, as well as some of the best practices that employers should consider adopting when dealing with employees who have been bit by the “love bug.”

Given human nature and the amount of time peo­ple spend together at work, it is not surprising that love often blooms in the workplace.  Just as quickly as relationships develop, however, they can also become sources of distraction or discomfort, which can have both an adverse impact on the work environment and expose the employer to a host of potential legal liability.

Can’t Help Falling in Love

When an employer first learns of a potential romance, instead of electing not to take any action, the employer may consider taking a more “hands on” approach.  This may include meeting with the employees to verify the existence of the relationship, confirming that the relationship is consensual, advising them to keep their romance out of the workplace, and providing them with copies of the employer’s anti-harassment and anti-discrimination policies and, if available, its anti-nepotism or anti-fraternization policies.  Moreover, it is also advisable that the supervisor who conducts this meeting maintain a record of what was discussed in case recollections should differ down the road.

Perhaps the most immediate issue that can arise from a workplace romance is the attendant disruption caused by romantically involved employees failing to distinguish between personal and work time; i.e., when personal phone calls, text messages, e-mails and the like are exchanged during working hours and adversely impact upon productivity and the delivery of services.  When this occurs, employees should be directed to meet with their supervisors and advised that failure to keep their romance out of the workplace could lead to reassignment or even discipline.  If the purpose of the meeting is to investigate whether the employees have permitted their relationship to interfere with work, either or both of the employees may have the right pursuant to statute and/or a collective bargaining agreement to have a union representative present at the meeting.  Be sure to check with us before proceeding, however, because this right only arises in certain factual circumstances.

Also, it may be beneficial for employers to implement technology policies that minimize employees’ expectations of privacy in the use of employer-provided devices and employer-provided internet/intranet.  These policies should alert employees that they should not have any expectation of privacy with respect to their use of these devices/services and that the employer has the right to monitor their electronic activities when using employer-provided devices or internet/intranet at any time and without prior notice.

Ain’t No Mountain High Enough

Another common issue that arises from workplace romances is a claim of favoritism; i.e., that an employee was wrongfully passed over for an assignment or promotion in favor of another employee’s significant other or, conversely, claims that one employee engaged in sexual harassment by denying his/her significant other the same assignment or promotion.  The potential for these types of claims to arise is only compounded when the relationship is between a supervisor and his/her direct subordinate.  Favoritism, even if resulting from a romantic, consensual relationship, is not per se illegal.  It can nonetheless be disruptive to the work environment and may lead to claims of sexual harassment, contract violation, etc.

In order to limit these types of claims, employers may consider implementing an anti-nepotism policy that precludes employees related by blood or marriage from working in a supervisor/supervisee capacity, or an anti-fraternization policy that prohibits employees from maintaining certain kinds of “personal-plus”-type relationships with each another.  If you are considering adopting or modifying an anti-nepotism and/or anti-fraternization policy, we recommend that you contact us to determine whether you will first need to negotiate with your union(s) over the implementation of these policies.

These Boots Are Made For Walkin’

Successful or failed workplace romances can quickly result in a claim of sexual harassment (quid pro quo or hostile work environment), discrimination, negligent hiring, negligent supervision or other claims brought by a member of the relationship or by other employees in the workplace.

It is critical to have in place all relevant and legally required policies in order to prevent unlawful harassment or discrimination from occurring in the first place, to provide a forum for internal complaints and to combat litigation that is filed against the employer as a result of a workplace romance.  This includes an anti-harassment policy that prohibits sexual and all other forms of unlawful harassment and an anti-discrimination policy that prohibits unlawful discrimination based on gender, sex, gender identity, gender expression, transgender status, gender dysphoria, sexual orientation, pregnancy, domestic violence victim status, marital status, familial status and all other protected characteristics and bases.

The Equal Employment Opportunity Commission (“EEOC”) has recently recommended that employers also maintain a written anti-retaliation policy that includes, among other things, examples of prohibited retaliation, proactive steps for avoiding actual or perceived retaliation, a reporting mechanism for employee concerns about retaliation, access to a mechanism for informal resolution and a clear explanation that retaliation can be subject to discipline, up to and including termination.  Retaliation occurs when an employer takes a materially adverse action against an employee because the employee engaged in protected activity (for example, filing a complaint of harassment or discrimination or participating in an investigation or complaint regarding alleged harassment or discrimination).

The anti-harassment, anti-discrimination and anti-retaliation policies should clearly describe how an employee can file a complaint if the employee believes that he or she is being harassed, discriminated against, or is the subject of retaliation.  The policies should provide for a prompt, thorough and impartial investigation of all complaints and require the employer to take prompt corrective actions, if appropriate.  The policies should also address, among other things, confidentiality and retaliation.  It is a “best practice” to ensure that all employees are provided with a copy of these policies, along with any accompanying regulations, when they are first hired and at least annually thereafter and that all employees be required to sign an acknowledgement of their receipt of these policies.

Another “best practice” is to train, on a regular basis, supervisors and managers on how to prevent and identify harassment or discrimination as well as how to take appropriate action.  The EEOC also recommends that employers offer training to all employees on a regular basis as an additional tool to prevent harassment in the workplace.

The employer’s policies and ongoing training should outline all unacceptable conduct.  For example, the courts have held that frequent, but less serious conduct can even form the basis of a successful sexual harassment claim.  For example, in 2016, the Ninth Circuit Court of Appeals held that a reasonable jury could find that a male supervisor’s act of greeting a female subordinate with unwelcome hugs and/or kisses on more than one hundred occasions over a twelve-year period could have been so severe or pervasive enough to have created a hostile work environment.

(Who Wrote) The Book of Love

The key take away from all of this is that the most effective way for an employer to try to reduce these types of issues is to announce in advance the acceptable parameters pursuant to which romantic relationships will be permitted in the workplace, if at all.  By giving everyone advance notice of the work-related course of action to be taken when romantic relationships are pursued or started through a combination of common sense actions and appropriately tailored and implemented policies, employers will best be able to navigate the myriad of issues that may potentially arise and seek to reduce their potential liability.

Please do not hesitate to contact Lauren Schnitzer at or any of our other attorneys if you have any questions regarding the information contained in this memorandum.


© Lamb & Barnosky, LLP 2017