Romance in the Workplace

Romance in the Workplace


With Valentine’s Day upon us, we would like to share the following best practices for managing romance in the workplace.

“Can’t Take My Eyes Off of You”: Proactively Address Workplace Romances

Best practices that should be followed when you become aware of a workplace romance include meeting with the employees to confirm that the relationship is consensual, reminding them to not let their romance impact their work (e.g., you should be working, not flirting), and providing them with copies of your relevant policies including, but not limited to, your policy against workplace sexual harassment and your policies against workplace harassment, discrimination and retaliation. The supervisor/Human Resources personnel who conduct this meeting should maintain a written record of what was discussed in case an employee’s story changes from what was initially discussed during the meeting.

Preparing and implementing written rules or policies to address workplace relationships will help your employees know what is expected of them. For example, you may want to consider implementing an anti-fraternization policy that prohibits romantic relationships between coworkers or between supervisors and subordinates. It can be effective if properly and consistently enforced. These policies can be difficult to implement, however, and may lead to claims of differential treatment. For example, the policy could prohibit a romantic relationship between coworkers, yet permit close friendships, even though the break-up between friends could impact the workplace more than a romantic break-up.

You may also, in addition to or instead of implementing an anti-fraternization policy, implement a policy requiring employees to confidentially report romantic relationships (e.g., to Human Resources). This permits the employer to take any necessary actions to avoid potential future liability in case the relationship does not last. The employer can take appropriate steps, for example, to ensure that one party in the relationship is not responsible for the terms and conditions of the other.

If you would like to explore either of these options, we recommend that you first speak with us to determine, among other things, whether you have any bargaining obligations with your union(s) prior to, or as a result of, establishing one or both of these types of policies.

Regardless of whether they are physically present at the workplace or working remotely, your employees continue to be protected by the laws prohibiting workplace sexual harassment and your policy against workplace sexual harassment (assuming it complies with applicable law). If you would like us to review your policy against workplace sexual harassment or would like to discuss the related mandatory annual training for your in-person/remote workforce, please contact us.

“Every Breath You Take”: Focus on Supervisor/Subordinate Relationships

Romantic relationships between subordinates and supervisors can create conflicts of interest and may cause other employees to complain about perceived favoritism. When/if the relationship ends, it can be difficult for an employee to remain a productive member of the workplace. Break-ups can also lead to claims of supervisor-imposed (and, therefore, management-imposed) sexual harassment, retaliation or other legal claims against the employer.

Employers should, as a best practice, take steps to limit potential liability. This should include, for example, changing the reporting structure of the romantically involved employees to the extent necessary so that they do not have a direct reporting relationship with one another. As a result, for example, the supervisor would not be responsible for the subordinate’s assignments, evaluations, discipline; etc. This may limit or avoid other employees from raising claims of favoritism. Prior to doing so, however, you should check any applicable collective bargaining or other agreements to ensure that they do not contain restrictions on changing the affected employees’ terms and conditions of employment. If they do, we recommend that you contact us to discuss how to address this issue.

“End of the Road”: Best Practices Post-Break Up

When a workplace relationship ends, the employer may be subject to, among other things, harassment, discrimination and/or retaliation claims. Having legally compliant policies prohibiting workplace sexual harassment, discrimination, retaliation and harassment (based upon any characteristic or status protected by applicable law other than sexual harassment), in addition to regularly training employees on these policies, is a good first step in the employer’s defense to one or more of these claims (though this, alone, may not always be legally sufficient).

As a reminder, all employees who work in New York State must, on at least an annual basis, receive workplace sexual harassment prevention training in accordance with the applicable State law. New employees should be trained as soon as possible and, at the time of hiring, receive a notice enclosing a copy of your workplace sexual harassment prevention policy and training materials.

Over at least the last 10 years, we have seen an increase in workplace complaints and litigation related to alleged sexual and other workplace misconduct, regardless of when it occurred. The following best practices can help employers prepare for and respond to these claims, should they arise:

1. Maintain, regularly review and, when appropriate, update, a workplace policy prohibiting sexual harassment that complies with all applicable laws. Sexual harassment is a form of sex discrimination and is unlawful pursuant to federal, State and (where applicable) local law. Sexual harassment includes, among other things, harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity and the status of being transgender.

2. Maintain, regularly review and, when appropriate, update, workplace policies prohibiting harassment (based upon any characteristic or status protected by applicable law other than sexual harassment), discrimination and retaliation to comply with all applicable laws.

3. Maintain a record of when these policies are distributed to employees and when each employee receives anti-sexual and other anti-discrimination/harassment/retaliation prevention training.

4. Document conversations with or counseling of employees regarding workplace romantic relationships.

5. Establish and implement a schedule for required annual training of current employees and newly hired employees.

6. Train supervisors to recognize and address harassing, discriminatory and retaliatory behaviors.

7. Require supervisors to report any potentially harassing behaviors no matter how minor they may appear to be.

8. Be prepared to promptly investigate allegations of harassment, discrimination and retaliation by reviewing the relevant policies and procedures for an investigation and determining who will be responsible for ensuring compliance.

9. Be prepared to respond to inquiries from the media and the public.

10. Establish a plan for addressing post-investigation workplace issues (e.g., periodic “check-ins” with those involved).

Please do not hesitate to contact one of our attorneys at (631) 694-2300 if you need assistance updating or drafting your workplace policies prohibiting harassment, discrimination, retaliation or your other related workplace policies; would like assistance implementing the required or recommended employee training related to these policies or if you have any questions regarding the other information provided in this memorandum.


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