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Jul 25, 2022

Whether it’s people deciding to work on a hybrid basis or others ‘moving back’ to their desk on a permanent footing, the good news for many employers is that people are (finally) returning to the office.

But consider this. Many returnees will have had their social interaction dramatically curtailed during the past two years, and so as in-person interactions both recommence and increase, employers should anticipate an uptick in “intimate” relationships too.

‘It’ happens, but could it create problems?

Given the workplace (historically), has been where most people spend the biggest proportion of their time, it is – of course – not surprising that work relationships develop.

Data from 2019 found one-in-three Americans have dated a co-worker (and it has been as high as 41%), and around 16% do meet their spouse at work.

But the risks of intimate relationships in the workplace are at their greatest when there is a power differential between the parties. At a very minimum, there is almost always a perceived conflict of interest.

This also creates myriad sexual harassment risks. For example, the person with less power could argue that, although he or she participated in the relationship, it was unwelcome. Indeed, in the seminal case on this issue, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the United States Supreme Court held that the plaintiff could proceed with her sexual harassment claim, even though she acknowledged having sexual intercourse with her manager between 40 and 50 times. SCOTUS held the issue was not whether the intercourse was “voluntary” but rather whether it was “welcome.”

Revisiting relationships at work in a post-pandemic world

As employers consider and/or revisit this issue in our post-pandemic landscape, they may be tempted to implement a prohibition on individuals having an intimate relationship with someone where there is a power differential.

The problem is that prohibition won’t stop the relationships. Instead, it may result in the relationships going underground, adding an additional layer of risk that goes with the cover up.

In most cases, a more practical approach would be to develop a policy that requires the person with the power to report the intimate relationship to a designated party.

Here are factors to consider in developing and/or modifying, and then implementing, a reporting policy in the workplace:

Define the nature of relationships covered: The word “intimate” without more leaves too much gray. Spell out what intimate means: sexual and/or romantic. As an aside, I had a case where an employer had a policy on “Workplace Romance.” The manager did not report a relationship as required and defended his failure to report on the ground that it was simply sexual and there was nothing romantic about it.

Determine what relationships are covered: Does it extend to all relationships where there is power differential? Or, does it apply only whenever the person with power has direct or indirect supervisory or institutional authority over the person? Or is it more limited to a chain of command? These are but three of a many more options. Spell out whichever option you pick.

Don’t change employment status: Do not state that the position of the subordinate will automatically be changed in the event an intimate relationship is reported. Even with an increase in gender equality in power positions, the person with less power is still more likely to be a woman in many organizations. While it may be easier to change the position of the subordinate, avoid a per se rule that sends the wrong cultural message and invites legal scrutiny.

Have consequences if people in power fail to report: If there are no consequences on paper and/or in practice for failure to report, it is better not to have a reporting requirement. More specifically, there can be no exceptions for “rock stars” (for example, those who generate significant revenue).

Be consistent: Apply the policy without regard to marital relationship and/or sexual orientation or the gender of the person in power. Considering any of these factors in deciding how to react to a report, or a failure to report, sends the wrong cultural message and may give rise to legal liability, too.

Record everything: When a report is made, someone in the organization should speak with both parties to confirm and document things. This includes the extent to which the relationship is truly welcome and establishing/reiterating the rules of the game going forward, such as that the subordinate has the right to end the relationship at any time without retaliation of any kind.

Train your managers: An effective reporting policy should be reinforced through training. The training should try to cover situations ordinarily not covered by the reporting policy, such as a request for a date to which the subordinate says “no” and the manager never asks again. Managers need to be aware of the risk of merely asking for a date: the subordinate may believe and allege that any subsequent adverse action is retaliatory for his or her saying “no.” In this context, make sure managers are trained to recognize that “I’m busy” actually means “no” and not “ask me another time.”

Think about where there are no power differentials too: The most important rule is that an employee has the right to say “no” to a direct or indirect invitation for an intimate relationship by any employee or non-employee with whom they come into contact in the course of their employment. This is regardless of position.

Define what isn’t dating: Emphasize in the training of leaders that mentoring and social interaction is not dating. That said, provide guidance around how to engage in mentoring and social interaction so that it is not reasonably likely to be perceived as intimate (or an attempt to initiate intimacy). If you don’t address this head on, leaders may avoid mentoring and social interaction with those they fear may bring a claim against them.