The very nature of the work environment fosters the potential for office romances. Such romances raise various potential workplace issues, ranging from jealousy and retribution to poor morale and sexual harassment claims. Employers may face workplace disruptions and exposure to legal liability when workplace relationships go awry.

Employers must be aware that romantic relationships between employees can create an environment potentially conducive to sexual harassment claims. An employer, however, may be able to curb office romances, and thereby limit liability exposure, by implementing written anti-fraternization (or anti-dating) policies.

Legal claims arising out of attempted or actual office romances generally fall into four categories:

the “jilted lover,” where a rejected supervisor or co-worker retaliates due to the perceived slight;

unwelcome (but previously welcome) sexual advances by an employee who unsuccessfully attempts reconciliation with a former lover;

a third party upset about his or her co-worker’s relationship and the actual or perceived preferential treatment and favoritism provided for a lover; and

retaliation claims, when a former lover complains to management or commences administrative or legal proceedings about unwelcome sexual advances, and the employer subsequently takes any adverse employment action against the complaining employee.

According to the Equal Employment Opportunity Commission and numerous court decisions to date, applicable laws do not prohibit preferential treatment based on a consensual relationship. These courts have held that while favoritism toward a paramour may be unfair, it does not discriminate in violation of the law since both men and women are disadvantaged for reasons other than their genders. Accordingly, preferring a paramour over other members of the same or opposite sex has usually not been held to constitute discrimination.

While it has been held that one consensual relationship does not, by itself, create a hostile workplace environment, it is possible for several such relationships to do so. If a supervisor or business owner has several workplace paramours, and they all receive special treatment, then it is implied to employees that to get ahead, one must engage in a relationship with the boss—and that has been held to be unlawful, whether the relationships are consensual or not.

Even if an activity does not rise to the level of being actionable in court, if co-worker relationships hinder productivity or morale, it becomes a performance problem, and an employer must treat it as such. A relationship may pose a threat to the employer where job-related or career-related decisions could be influenced. Ideally, the hierarchal level of the participants should not be a factor in the disciplinary process, as equitable treatment is important for maintaining employee morale.

Truly consensual relationships in the workplace do not constitute sexual harassment, since the conduct is not legally deemed to be unwelcome. After a relationship between a superior and subordinate ends, however, if the subordinate later contends the relationship was never consensual—but, rather, one created by pressure from a supervisor—then the employer may have a difficult time proving the relationship was, in fact, consensual.

This is not to say that a former paramour can never experience harassment at the hands of the former sweetheart. However, to prevail, the complaining employee must usually rebut evidence that the alleged harassment is just fallout from the breakup. A plaintiff can rebut the presumption, for example, by showing that other members of the same sex also experienced harassment or were similarly mistreated by the former mate. And, of course, a presumption that the purported harassment was motivated by the breakup will become irrelevant if the harasser threatens the victim with termination if the relationship is not continued.

Retaliation is an adverse action taken by an employer against an employee because of a complaint about harassment, discrimination, or any other unlawful practice. Adverse employment actions include discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion. The alleged adverse action must have some actual detrimental effect on the employee.

Employers can legally adopt anti-dating policies. As for policies that pertain to marriage, Florida statutory law was amended in 2000 to provide that an employer may lawfully “[t]ake or fail to take any action on the basis of marital status if that status is prohibited under its anti-nepotism policy.” Therefore, fraternization policies do not per se violate Florida law regarding marriage. Moreover, there is no federal law banning discrimination based on marital status.

An employer has options in deciding how to address workforce romances. An employer can:

adopt and strictly enforce a rigid company policy that broadly forbids dating between all employees;

adopt a “blended policy” that prohibits all superior-subordinate relationships; or

place only minimal restrictions on inter-office relationships.

Each potential policy has numerous legal and business advantages and disadvantages that should be thoroughly reviewed with an attorney and carefully considered by an employer before deciding which option is best for a particular workplace and environment.

One precaution employers who allow workplace relationships can take is to require co-workers in consensual relationships to notify the employer of the relationship’s existence and enter into what is commonly called a “love contract.” A love contract is similar to a prenuptial agreement. The primary purpose of such an agreement is to limit employer liability and help prevent sexual harassment lawsuits. To date, there have not been any reported cases in which employees who have signed such agreements have sued an employer for sexual harassment related to the office romance, so no court has ruled on the document’s enforceability. Moreover, this type of agreement does not guarantee either that a lawsuit will not be filed or that a court will not hold an employer liable under such a suit. However, the agreement may provide an employer with additional defenses to a harassment claim.

Such agreements should contain numerous provisions to help the employer subsequently establish, if ever necessary, that the relationship was consensual, voluntary, and welcome and that neither employee was harassing the other or otherwise violating the company’s sexual harassment policy.

Romance in the workplace may create the potential for sexual harassment claims, morale problems, office gossip, and a host of negative consequences. Because of employee privacy interests, employers should be sensitive in crafting an anti-
fraternization policy while striving to keep the workplace free from sexual harassment and other problems often associated with office romances.

Larry Corman is a litigation partner who concentrates his practice in labor and employment litigation. Mr. Corman assists employers in preparing policies and procedures pertaining to employment-related matters, helps employers investigate and resolve employee workplace related complaints, and defends employers in administrative and legal proceedings concerning harassment, discrimination, and retaliation claims. He is admitted to practice in Florida (1983). Contact Mr. Corman at lcorman@hodgsonruss.com.

Glenn M. Rissman concentrates his practice primarily on labor and employment law counseling and litigation. He also advises employers on a wide range of labor and employment matters, including hiring, termination, and discipline of employees. He is admitted to practice in Florida (1991). Contact Mr. Rissman at grissman@hodgsonruss.com.