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Employers are left to pick up the pieces when office romances fizzle

August 16th, 2013  |  Lorene Park

By Lorene D. Park, J.D.

Let’s face it; romances between coworkers are more common than most people (particularly married people) want to admit. Many employers have non-fraternization policies due to fears that such relationships will lead to harassment suits but, frankly, that’s like locking your patio door. If someone wants to break in, they’ll simply break the glass. So a policy, however well drafted, is unlikely to stop two consenting adults who are determined to take things to the next level. And much like the hapless homeowner on the day after the burglary, the employer will be left to pick up the pieces of a fizzled romance. That’s when the policy can help — particularly if it is enforced fairly.

For example, in Rau v United Parcel Service, Inc, a federal district court granted summary judgment for an employer on all claims by a female UPS supervisor that depended on allegations that she was treated worse than her ex-boyfriend, who was also a UPS supervisor. The policy violations came to light when she asked to transfer after their romance fizzled, and the employer gave them the same choices between discipline and separation agreements (D. Idaho, July 31, 2013). Her claims of emotional distress also failed.

Of course, disparate treatment isn’t the only issue for employers. In another case, an employee who ended a two-year affair with her supervisor and quit after she found out he was already married, sued the employer for sexual harassment (Kane v Honeywell Hommed, LLC, D. Colo. July 30, 2013). Dispensing with her claims on summary judgment, the court noted that the facts surrounding the relationship, including her efforts to maintain it, indicated the sexual conduct was not unwelcome. Her continued excellent performance further undercut her HWE claim. Moreover, her claim that the failure to rehire her (when she wanted to come back) was in retaliation for her EEOC charge also failed, because she did not show the employer knew of the charge.

You would think that two adults who so easily (and enthusiastically) navigate themselves into such relationships and hide the fact from their employer could clean up their own mess if the relationship sours but, all too often, it is the employer that has to pick up the pieces. When that happens, here is some advice:

  • You can have policies limiting supervisor-subordinate relationships and requiring disclosure of relationships but recognize, realistically, that willing participants will actively hide policy violations for fear of losing their jobs
  • When drafting any fraternization policies, avoid running afoul of other laws such as the NLRA (coworkers may discuss the terms and conditions of employment on and off duty) or privacy laws
  • Along the lines of privacy, make sure any investigation into policy violations only discloses information on a relationship to HR staff or managers who need to know
  • Ensure that your sexual harassment policies cover situations where once consensual relationships turn sour (give more than one avenue for a subordinate to complain)
  • Treat the participants in fizzled relationships as equally as possible
  • Be able to justify all responses to such relationships with a legitimate business reason