Even if your workplace does not resemble the hotbed of sexual activity depicted at Grey Sloan Memorial Hospital on TV’s Grey’s Anatomy, chances are that romances are brewing. In a 2018 survey of office workers released by CareerBuilder, 36% of workers admit that they have dated a co-worker. Of those, nearly one third dated someone senior to them in the office hierarchy, 22% dated their direct supervisor, and 6% have left a job because a romantic relationship with a co-worker turned sour.
The courts have not hesitated to wade into the waters of workplace romance when things end badly. The cases below are but a few illustrations of the risks these relationships present to employers:
– Beaupre v. Cliff Smith & Assoc., 50 Mass. App. Ct. 480 (2000). The Massachusetts Supreme Judicial Court affirmed an award of $250,000 in damages for an employee who alleged that after she ended a consensual relationship with the company’s owner, he subjected her to near constant verbal harassment, humiliation, and threats of job loss unless she resumed her sexual relationship with him.
– Gerald v. University of Puerto Rico, 707 F.3d 7 (1st Cir. 2013). When Melissa Gerald tried to end a consensual affair she was having with her supervisor, he began making unwelcome sexual advances towards her, including by grabbing her breasts, sexually propositioning her, and asking her, “What will it take for you to f–k me?” at a staff meeting. When Ms. Gerald sued, the University argued that the conduct wasn’t actually unwelcome, since she had engaged in off-color banter of a sexual nature with her supervisor. Rejecting this argument, the First Circuit ruled, “We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work.”
– Ritchie v. Dep’t of State Police, 60 Mass. App. Ct. 655 (2004). The plaintiff alleged that a police lieutenant exhibited favoritism towards his assistant, with whom he was in a romantic relationship. This favoritism included approval of bonus requests, overtime, time off and “reprisals” against other employees. After the plaintiff objected to this conduct and filed a sexual harassment complaint, she began receiving lower scores on her performance evaluations. While the court found that this specific behavior was insufficient to establish a hostile work environment claim, the court did allow the plaintiff’s retaliation claim to proceed, finding that “paramour favoritism” can form the basis of a reasonable, good faith belief that the employer was violating G.L. c. 151B.
These cases offer a reminder of the risks to employers when employees — not to mention those in a reporting relationship — engage in intimate relationships. Employers should consider adopting the following practices to limit the risks from workplace romances:
– Prohibit supervisors from engaging in relationships – or any sexual or romantic behavior – with subordinates. The liabilities associated with workplace relationships increase exponentially given the inherent power imbalance between a supervisor and that person’s direct or indirect report.
– Adopt a discrimination and harassment policy. Every employer in Massachusetts with 6 or more employees is required to have a sexual harassment policy. It should be plainly written, widely distributed, applied uniformly, and posted electronically. The policy forms the cornerstone of your effort to prevent sexual harassment and explain how the employer will respond when allegations of wrongdoing are reported. The Massachusetts Commission Against Discrimination has published a sample policy. Employers are also encouraged to review the regulations on discrimination in employment and the MCAD’s Guidelines on 151B: Sexual Harassment in the Workplace.
– Investigate allegations of harassment and discrimination – full stop. Investigations must be prompt, fair and thorough, and those who conduct investigations must be trained to do so. While the scope of any particular investigation will vary, at a minimum, the investigation should include an interview with the complainant – the person alleging wrongdoing; the respondent – the person who has been accused of wrongdoing; and a review of relevant documents. With few exceptions, investigations of harassment should be memorialized in a report that identifies: the steps taken to investigate, information collected from interviews; the findings of the investigation; and recommendations.
– Consider utilizing a Consensual Romance in the Workplace Agreement, also known as a “Love Contract” for peer romantic relationships. These contracts frequently ask employees in a relationship with one another to agree that they:
- have received, read and understand the employer’s discrimination and harassment policy;
- affirm that they are in a consensual relationship with one another;
- will not engage in public displays of affection or other behavior that might make others feel uncomfortable;
- will not participate in company decision-making processes that could affect each other’s pay, promotional opportunities, performance evaluation and the like; and
- will treat each other professionally, including by not retaliating, if the relationship ends.
– Conduct regular trainings. A 2016 report by the Equal Employment Opportunity Commission found that harassment training, standing alone, has not been shown to effectively reduce the incidence of harassment in the workplace. The EEOC urges employers not to limit workplace training to “legal compliance” (i.e., understanding what conduct is unlawful). Rather, employers should expand on this model, to include training in workplace civility and social skills. Such trainings offer participants a model for how to behave, rather than a lecture on how not to behave, providing a more positive and proactive model for workplace interactions. The EEOC also encourages training in bystander intervention, a tool that has begun to attract attention as a mechanism for preventing harassment. You can read more about the EEOC report and workplace harassment in our #MeToo@Work article.