February 14, 2018

Workplace Relationships in a Post #MeToo Era

by Steven Loewengart, Fisher Phillips LLP

In the midst of the #MeToo tidal wave, employers are clamping down on office romances out of fears over potential claims of sexual harassment. But is the answer to ban employees from dating altogether?

In today’s workplace, a ban would generally be a nonstarter. Many aspects of this camaraderie even inure to the benefit of employers. However, with the heightened focus on sexual harassment, a plan of action is imperative.

Employers have a right to be concerned. According to a CareerBuilder survey, 41 percent of employees have dated a coworker, and 33 percent of those romances resulted in marriage. Still, the remaining two-thirds of workplace relationships end in a breakup – opening employers up to claims of sexual misconduct as one party or another seeks revenge. On the other hand, a relationship that was once consensual can also turn coercive. In fact, one in four office romances involves a superior, which significantly raises the stakes.

In a post #MeToo era, employers must review and update their sexual harassment policies in light of current attitudes. It’s particularly important to have a “hotline” mechanism that allows anonymous reporting of potentially inappropriate behavior so issues can be addressed before escalating into legal claims. In addition, managerial training that draws stark lines between objectively harmless and aggressive behavior can go a long way.

Not surprisingly, employers are now strongly discouraging or banning relationships between supervisors and subordinates. Many are even asking employees to sign “love contracts” that spell out the voluntary nature of the romance – that is, affirming it is consensual, each employee is free to leave the relationship without fear of retaliation and that both parties understand the company’s sexual harassment policy. In addition, employees should agree to alert HR if the relationship becomes problematic.

Employers should ideally try to reassign a couple to avoid a direct-report situation. However, if that isn’t feasible, a love contract will serve as evidence that no coercion or harassment engendered the romance and the couple will maintain discretion in the workplace. Should the relationship end, an employer can defend itself in any resultant claim by pointing to the agreement as proof of its attempt to effectively address the situation.

Finally, employers should be hypervigilant in ensuring third-party employees aren’t negatively impacted in terms of promotions and perceived favoritism. This could result in claims of gender-based discrimination, if not properly addressed.