Social psychologists report that the workplace is closely aligned with each employee’s family dynamics.  People get into parental and sibling roles with co-workers who are not related by blood or marriage.  We bring ourselves to work, complete with psyches, emotions, bright spots, and disturbances.  Many Americans spend so much of their time at work, they see their workplace families more than their real ones.  In this context, can it really be surprising that people develop romantic interests on the job?  And when those relationships develop, as they inevitably will, does an employer have the lawful ability to interfere with consenting workers’ dating choices?  If so, then based upon what right or reason?

The employer has several areas of legitimate concern, explored below.

A Right to a Safe Workplace

First, employers have a duty to create and maintain a workplace that is free from unlawful discrimination, including gender discrimination.  And within gender discrimination, there is an area of concern called “hostile work environment”.  Sometimes, a worker will get pushy about his or her romantic interests, and turn what could have been fun and innocent interaction into a pressure-filled, threatening nightmare.

We had a married client who had a professional crush on a woman at his workplace.  He felt he could not reveal  his hidden interest, so instead he sent her flowers at regular intervals, with no card attached.  He kept up this secret flirtation, not knowing that the woman co-worker was becoming alarmed.  The employer installed a hidden camera, and caught this gentleman making a floral delivery.  He was investigated and disciplined for creating a hostile work environment.

Recently, one of our attorneys, a woman, attended a court conference with me.  A male court officer, a complete stranger, approached this lawyer, let her know he would like to ask her on a date, and persisted in his entreaties even when she politely and repeatedly declined.  I asked her if she wanted me to intervene, and she said no.  I continued to observe this obnoxious interaction until the court officer finally gave up.  Had the officer’s behavior occurred in a workplace setting between two employees, then, without question, it would have turned into a mandatory disciplinary matter.

A Right to a Non-Discriminatory Workplace

When consensual dating relationships end, employers may face legal claims arising from the failed relationship.  A worker could claim that the broken relationship caused the other party to retaliate.  A fired employee could claim he or she was terminated for breaking off the relationship.  The threat of legal action becomes exponentially greater when the consensual relationship was between a manager and a subordinate, a relationship of unequal bargaining power. The fired employee could claim, credibly, that she was fired for ending the relationship, based on a quid pro quo gone bad (“If you continue to sleep with me, I will protect your job.  If you stop, I will see that you are fired.”).

One party’s efforts to reconcile the relationship could produce charges of assault, stalking, or sexual harassment.  On the other hand, whether the manager-subordinate relationship persists or ends gracefully co-workers who become aware of the intimate relationship between a manager and a subordinate could legitimately claim a denial of workplace equality.

The Legal Basis for Employers’ Restrictive Policies on Workplace Romances

Consensual relationships that begin in the workplace do not amount to discriminatory conduct, in and of themselves.  However, they can and do degrade into claims of hostile work environment, sexual harassment, gender discrimination, and retaliation.

The NJ Law Against Discrimination and Title VII of the U.S. Code prohibit unlawful discrimination or retaliation in employment.  Employers who prohibit or restrict workplace romances are acting to prevent problems before they occur.

Employers can, as a matter of policy, entirely prohibit romantic relationships between co-workers or just between managers and subordinates – a more serious and dangerous area of concern, for the reasons mentioned above.  In part, their concerns involve the morale and productivity of all workers, including the ones who are now dating but may later become upset, unproductive, quit, or be fired for a variety of reasons that could be traced back to the unsuccessful dating relationship.  In part their concerns involve the morale and productivity of other workers who may be demoralized or feel discriminated against based on favoritism shown by the romantic co-workers, especially between a manager and a subordinate.  And they certainly will be motivated to avoid liability claims from disappointed suitors or lovers, as described above.

However, employers may not discriminate between married and unmarried employees in terms of office dating.  If unmarried employees may enter into workplace romances, then married employees must be permitted the same right – even if the employer is morally offended by the behavior.  That is because discrimination on the basis of marital status is itself deemed unlawful by the NJ Law Against Discrimination.

How Employers Ideally Should Respond to Workplace Romances

Workplace intimate relationships, whether in existence, desired, or broken off, put employers in a potentially terrible position, with adverse legal implications, especially when the romance ends badly.  Some employers resort to workplace prohibitions on dating, including disciplinary measures if not adhered to.  Others conduct extensive management and employee training’s on identifying, avoiding, mitigating, investigating, and disciplining sexual harassment, including “yes means yes”, and sensitivity training to recognize harassment, unwanted communications, and  how to handle a breach of sexual harassment/discrimination/retaliation policy.

Workplace anti-discrimination should include a mandatory reporting protocol, giving employees a safe haven to report breaches of company policy, which will generate an investigation and possible disciplinary consequences for offenders.

One innovation that has been reported but not widely used, involves employer acceptance of  workplace romances, yet, when those relationships become known, the employer could wisely require employees to confirm (or refute) the existence of the workplace relationship, especially on the issues of mutual consent and non-harassment.  This preventive tool makes it difficult for any party to later say they were the victim of gender discrimination, sexual harassment, or a hostile work environment (retaliation is still a possible claim, even if the relationship started out as consensual).

Conclusion

Workplace romances complicate already complex interlocking relationships.  They are superimposed on gender differences, manager-subordinate power struggles, co-worker jealousies, and employers’ fears about latent or patent liability risks — if and when the office romances crash and burn.

If you have a crisis or concern about workplace employment issues, including workplace romance issues, you should speak with experienced employment law attorneys for workers.  At the Central Jersey Law Firm of Hanan M. Isaacs, P.C., we will talk with you in language you can understand.  We will listen to your facts, explain the law, and tell you your best options to achieve your desired outcomes.  For a reduced fee initial consult, please contact our offices at 609-683-7400 or online.  Call today.   You will be glad you did.