ILMA Compoundings - May 2020 - 34

BUSINESS HUB

Workplace Dating:
Pitfalls and Policies
By Phillip M. Perry

R

omances occur in every workplace. Employees date, fall in
love and sometimes drift apart.
While most of these relationships
come and go without incident, some
lead to costly workplace disruptions.
Problems most often occur when
romances between managers and subordinates create conflicts of interest,
charges of favoritism by coworkers
and sexual harassment lawsuits. Companies such as McDonald's, Intel and
BlackRock have recently dismissed
executives for conducting consensual
relationships with individuals in their
chain of command.
Given the potential of workplace dating to erode the bottom line, a growing
number of employers are developing
and enforcing fraternization policies.
"Companies are starting to enforce
zero-tolerance policies, cracking down
harshly on individuals whose conduct
may constitute sexual harassment,"
said Robert J. Nobile, partner at
Seyfarth Shaw LLP in New York City.
"Conduct which in the past might not
have resulted in termination may well
do so today."
NEW LEGISLATION
The long arm of the law is fueling
the trend. "Ever since the #MeToo
movement began, many states and
municipalities have passed tougher
legislation related to sexual harassment
in the workplace," said Nobile. "They
are requiring employers to conduct
annual training on what constitutes
sexual harassment, to post notices

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MAY 2020

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detailing how employees should
report incidents of harassment and
to have employees sign documents
acknowledging an understanding of
their rights. Some states even require
employers to inform workers of the
types of damages they can pursue if
they are harassed."
While a relationship between a
manager and a subordinate can go
well over the long term, the practical
reality is that it can also end badly.
"Most people keep their emotions
off the job and maturely handle
breakups," said Bob Gregg, co-chair
of the employment practice law
group at Boardman and Clark LLC
in Madison, Wisconsin. "Some do
not, and the aftermath can result in
litigation. Continuing advances from
a supervisor, while at one time may
have been mutual and welcome, may
become unwelcome sexual harassment.
The company can be liable for failure
to address and stop these aftermath

behaviors." In fact, a substantial
number of sexual harassment cases
have resulted from what were at one
time consensual relationships.
Employers must take all these possibilities into consideration. But what,
exactly, is the best policy? A blanket
prohibition on all such relationships?
Or a gentler approach requiring
reporting and accommodation?
The first option would seem to offer
the greatest protection to the employer.
After all, consistently terminating the
supervisors in such situations would
seem to remove the relationships as
potential workplace irritants. But the
picture is murkier than it first appears.
"You can say on paper that you
prohibit dating with anyone in a
chain of command," said Nobile. "The
reality is that romantic relationships
will develop anyhow." When they
do, of course, the partners conduct
themselves under a cloak of secrecy,
which can make matters worse. When
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