Romantic Relationships at Work: Does Privacy Trump the Dating Police?

Article excerpt

The Privacy Project

Courts generally have upheld fraternization policies that balance employer and interests carefully and that are administered impartially

IN TODAY'S work-oriented culture, of fice romances and the related topics of sex and privacy have become important issues confronted by most employers. With more employees working longer days and spending so much of their time on-the-job, romantic relationships at work are developing more frequently.1 Workplace romance may be the only option for employees whose workload limits their outside activities; but for employers, this trend may prove problematic as the potential liability associated with these relationships rises.2

A 1998 survey by the Society for Human Resource Management predicted that 55 percent of office romances would likely result in marriage, but that 28 percent of these office relationships may result in complaints of favoritism from coworkers, 24 percent in sexual harassment claims, and another 24 percent in the decreased productivity of the employees involved.3 Statistics such as these have motivated employers to adopt prophylactic policies in an effort to avoid the potentially complicated and unsavory outcomes of office affairs and to maintain a strictly professional work environment.

As protection from litigation and potential liability, some employers adopt policies directly addressing dating in the workplace. These policies range from the very strict, such as a comprehensive prohibition of dating between employees, to the more lenient, such as a policy that actively discourages, but ultimately allows, employees to fraternize.4 Even a simple policy requiring employees to notify management when coworkers are romantically involved provides documentation of a consensual relationship that could be helpful to an employer's defense against a sexual harassment claim, should one arise.5

Perhaps daunted by problems of implementation and enforcement, other employers have avoided adopting any formal policy explicitly addressing the issue of romance in the workplace, choosing instead to rely on unwritten rules or other policies already in place. Studies indicate that some employers choose to "rely on a quiet form of persuasion ... [believing that despite having no written rules, their employees understand that as a matter of corporate culture or implied policy .. . supervisorsubordinate relationships" will be discouraged or simply not tolerated.6

Although employers generally enjoy the right to promulgate rules and regulations restricting dating on the job as they deem necessary, this right must be weighed against the countervailing privacy rights of their employees.7 Courts considering these issues have balanced the employer's legitimate business interests in avoiding unnecessary litigation and potential legal liability and in maintaining a fair and professional work environment, against the privacy rights of employees.8

EMPLOYERS' BUSINESS INTERESTS

Many employers adopt anti-fraternization policies in an effort to avoid the numerous types of liability they might otherwise confront.9 Liability may attach to an employer confronted with an office romance in a variety of ways.10 First, a romantic relationship between a manager or supervisor and his or her subordinate may result in allegations of favoritism, with coworkers claiming that the subordinate has received preferential treatment as a result of the relationship. For example, the subordinate may receive longer breaks, be given preferred shifts or receive unfairly favorable reviews. Over time, this perception of favoritism could lower employee morale and productivity-two business elements that employers have a vested interest in protecting.11

These complaints also may trigger a sexual harassment claim against an employer under Title VII of the Civil Rights Act, 42 sec U.S.C. 2000e, which enables employees to base claims of sexual harassment on, first, a "quid pro quo" argument where an employer conditions benefits, promotions or even employment itself on the receipt of sexual favors, or, second, an argument that sexual harassment has produced a hostile work environment. …