Not So Funny Business: What Employers Can Learn from the David Letterman Affairs?

3d_man_in_love_thumbLast night’s shocking revelations by David Letterman about an extortion plot threatening to expose his affairs with subordinates reveal to the larger public something human resources professionals have known for years: Romantic workplace relationships can lead to trouble, legal and otherwise. As a result, you should review your policies and practices to ensure that a failed romance ends with only a broken heart, not an empty bank account.

Workplace romance

The typical scenario unfolds like this: A supervisor begins to date a subordinate. They go out, have a good time, and continue to see each other socially. The two employees interact every day at work, and as the relationship grows, some of their romantic behavior seeps into the workplace. They are frequently together behind closed doors, e-mails are exchanged regularly, other employees take notice and begin talking about their questionable conduct, and the office suffers decreased efficiency and productivity.

When two employees having a romantic relationship are in the position of supervisor and subordinate, others become resentful and charges of favoritism arise. The couple may have sexual contact at work or elsewhere, sometimes with embarrassing consequences.
After a few months, one of the employees decides things aren’t working out and breaks it off, much to the other’s chagrin. The supervisor then unsuccessfully attempts to pick up their business relationship where it left off before the affair or to retaliate against the subordinate.

Things get out of hand, and the subordinate files a sexual harassment claim.
Sexual harassment claims can be extremely expensive, even if you eventually prevail. They’re also divisive and sabotage productivity. For an individual employee — victim or accused — a sexual harassment claim can be “professional suicide.” Since as many as a third of all consensual romantic relationships begin at the workplace and many end badly, what’s a beleaguered employer to do?

When romance sours

Most employees instinctively know when to draw the line on behavior that could be viewed as sexual harassment toward people they know only casually at work. The line gets blurry for some, however, when the questionable behavior was at one time consensual.
Your obligation to stop harassment in that situation is clear. You have no responsibility to seek out a dating couple daily and inquire about the status of their relationship to determine if it’s still consensual. But the minute one of them indicates he or she wants the other to stop the contact and makes that known to the company, your duty to stop what has arguably become sexual harassment begins and the liability meter starts ticking. Just because the victim consented to the same or similar conduct at one time, that doesn’t absolve your company from liability. The troublesome aspect is, you often may not fully appreciate the fact that the relationship has now become sexual harassment.

Other concerns include the sexual favoritism claims that frequently follow on the heels of a workplace affair. Those claims involve a type of sex discrimination that stems from one employee being treated unfavorably because he or she isn’t in a personal relationship with the supervisor. The employee who’s involved with the supervisor receives favorable treatment to the detriment of other employees in the department.


Adopting an antifraternization policy

Do all those claims and concerns sound familiar? If so, you may want to consider adopting an antifraternization policy. Antifraternization policies take antinepotism rules a step further by, at their most sweeping, prohibiting any employee from dating or having a romantic relationship with any other employee. More narrow versions limit fraternization within departments or when there’s a direct line of report.

Antifraternization policies eliminate the most common breeding ground for sexual harassment: previous consensual conduct. They also clearly eliminate instances of sexual favoritism or perceived favoritism. In addition, they seek to prevent any decrease in productivity and the demoralization of other employees in the work group that can be caused by office romances. Antifraternization policies have also been found to encourage earlier reporting of potential harassment.

If a total ban on fraternization sounds a little draconian to you, you’re free to style an antifraternization policy that fits your company. Some companies have chosen to ban only immediate supervisor-subordinate relationships or departmental fraternization as opposed to all intracompany relationships. Those more limited policies tend to be effective in stopping sexual harassment because they focus on the situation in which most sexual harassment liability occurs.

Another type of antifraternization policy allows dating between employees but requires one member of a couple working in the same department to request a transfer to another office or department. That’s an effective policy, especially if it’s aimed at supervisor-subordinate relationships. It’s probably not feasible for small employers, however.

Some employers have experimented with a version of a prenuptial agreement adapted to the workplace. If two employees want to establish a romantic relationship, the employer requires them to inform the company and acknowledge in writing that the relationship is consensual. They are also told that if the relationship ends and sexual harassment occurs, the victim should notify the company promptly. If a sexual harassment complaint is made later, any failure to comply with that policy might help your defense. Better yet, it’s likely to encourage people to come forward sooner when a relationship turns sour, and it will sensitize you to the potential for claims of sexual harassment by the employee who has come forward.

One warning: It’s possible to take antifraternization rules too far. You can’t attempt to regulate an employee’s love life outside the workplace. For example, courts haven’t upheld blanket policies against cohabitation outside marriage.

In Delaware, discrimination on the basis of marital status is prohibited. Although it’s invoked infrequently, that statute might be triggered by an effort to inject sweeping rules of morality into the workplace — through a “no-adultery” policy, for example. A broad antifraternization policy might even be challenged since it wouldn’t prohibit married employees who work for the same company in different departments from socializing with each other but would prevent unmarried employees who want to have a romantic relationship from doing so.

You should also be careful when drafting policies that make one or the other employee in a relationship change jobs. Make sure your policy doesn’t always require that the woman or the “lower-paid” or “lower-level” employee be the one to transfer. You could be creating a pattern of sex discrimination if the person who has to transfer always turns out to be female.


Bottom line

Antifraternization policies and related rules can help ensure a harassment-free, impartial work environment. Such policies are an effective option not only for eliminating the potential for sexual harassment but also for increasing productivity and morale within your company.

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