Sex, Love and Payroll: Employers Face Tricky Issues With Workplace Romances

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James Y. Wu

In 2003, 47% of survey respondents admitted to having an office romance, according to Vault.com’s 2003 Office Romance Survey.  Eight years later, in Vault.com’s 2011 Survey, the percentage increased to 59%.  It is no wonder that workplace romances thrive and seem to be increasing.  Workers in all types of jobs spend most of their waking moments at work, developing professional and personal relationships with their colleagues.  Often, co-workers share similar education and income levels, intellectual interests, and they commiserate over the same workplace stresses.  Through these and other connections, relationships between co-workers can quickly evolve from platonic to romantic.

Certainly, many employees worry about their jobs and what a workplace romance might do to their job security and relationships with other co-workers.  Similarly, employers worry that workplace romances will harm the work environment, lead to low morale, dissention, and lawsuits for sexual harassment.   With Valentine’s Day quickly approaching, here are some issues for employers to consider when addressing workplace romances.

Do Not Attempt to Prohibit All Workplace Romances

As much as an employer might like to, attempting to establish a complete ban on workplace romances is not a good idea for a number of reasons.  First, it will likely be difficult, if not impossible, to enforce such non-fraternization policies.  In addition, by having a policy prohibiting all workplace romances, employees may feel they must hide from and deceive their supervisors and co-workers.  This type of “us versus them” mentality is the last thing employers want to foster.  Second, when workplace romances do not interfere with an employee’s work performance, and do not otherwise cause any disruption to the workplace, employers can do very little to prohibit these consensual relationships.  This is so, because, at least in part, the California Constitution protects employees’ right to privacy, and California Labor Code Section 96(k) explicitly protects “lawful conduct occurring during nonworking hours away from the employer’s premises.”  Thus, to the extent the actions of the romantic couple do not affect the workplace, employers are unable to prohibit these relationships.

Create and Enforce Policies That Make Sense

Employers, however, are not completely powerless.  For example, they can adopt a policy restricting relationships that create actual or potential conflicts of interest, and informed consent policies/love contracts.

Conflicts of Interest

The most common type of conflict of interest arises when a manager/supervisor is in a relationship with a subordinate.  Employers have legitimate concerns that such relationships may jeopardize business judgment, lead to breached confidentiality, and reveal a lack of judgment by the supervisor.  Furthermore, such a relationship may be perceived by other employees to foster inappropriate favoritism and may lead to claims of quid pro quo or hostile environment sexual harassment.  As a result, businesses should consider a policy prohibiting relationships between supervisor and subordinate, particularly when the two employees are in the same “chain of command.”  This policy may also require the dating employees disclose relationships that may create a conflict of interest, and the policy should make clear that the employer may take appropriate action to eliminate any conflict of interest (such as transferring one of the employees, if possible).  Note, however, that employers should be ready to articulate a business justification for such a transfer in order to lessen the chance of a discrimination claim.  At least one California appellate court has enforced an employer’s conflict of interest policy prohibiting supervisor-subordinate romances.  In Barbee v. Household Automotive Finance Corp. (2003) 113 Cal.App.4th 525, the Court found that a supervisor’s failure to notify his employer of a relationship in violation of the conflict of interest policy was not protected by the California Constitution or the Labor Code.  The Court found that the employer had a legitimate interest in avoiding the conflict of interest and that because the supervisor knew his relationship violated the applicable policy, he had a lower expectation of privacy.

Informed Consent/Love Contracts

Though the legal effect of love contracts is unclear in California courts, they may provide some protection to an employer should the workplace romance result in unwelcome behavior.  Informed consent policies and love contracts typically require that each party to the relationship confirm that the relationship is consensual, that the relationship will not interfere with the parties’ job performance and and that it will not negatively alter the work environment.  The love contract should also reiterate the employer’s anti-harassment policy.  The contract should put the ball in the parties’ court to notify the employer of any unwelcome behavior and change in the relationship.  Whether or not informed consent/love contracts make sense depends greatly on the dynamics and size of the employer.  Also, before implementing this tactic, the employer should consider whether such contracts would be seen as intrusive by employees and therefore create a backlash.  Moreover, employers should be prepared with an appropriate response to a couple who refuses to sign such a contract.

Professional Behavior/Code of Conduct

Another policy employers may consider is one that promotes professional behavior in the workplace.  Public displays of affection (“PDA”) and sexual banter may make other employees uncomfortable, can be considered unprofessional and may give rise to complaints of sexual harassment.  Employers can direct their employees to always behave in a professional manner at work, and to refrain from PDA and sexual banter at work.

Finally, while it may be tempting, employer policies should not prohibit adulterous relationships that do not give rise to conflicts of interest or otherwise harm the work environment.  Baring adulterous relationships and not other relationships, may violate the California Fair Employment and Housing Act’s (“FEHA”) prohibition of marital status discrimination.  The same goes for attempting to only focus these policies on same-sex romances.

Ultimately, clear and effective written policies will help employers maintain professional work environments.  Like all policies, workplace romance policies should be applied consistently to all employees regardless of an employee’s job position, sexual orientation, gender, race, marital status, or any other protected characteristic.

Establish An Anti-Harassment Policy and Provide On-going Training

Like any relationship, workplace romances may end in heartbreaking fashion.  Employers become prime targets when one employee later claims that the workplace romance was actually non-consensual (quid pro quo sexual harassment), or that it created a hostile work environment.  Furthermore, employees outside of the workplace romance may claim to be subjected to a hostile work environment as a result of perceived or actual favoritism by those involved in the workplace romance.  For example, in Miller v. California Department of Corrections (2005) 36 Cal.4th 446, a supervisor was involved in sexual relationships with a number of women he supervised, and those women received promotions and received favoritism.  The California Supreme Court recognized that such favoritism could be actionable when it is “severe or pervasive,” as in Miller.

Thus, even if an employer does not want to specifically address workplace romances, every employer should have a harassment prevention policy. Anti-harassment policies should make clear what conduct is prohibited, who is protected, how employees can get help and report complaints, and what steps the employer may take once a complaint is made (including investigating and taking appropriate corrective action).  Having a strong and clear policy, though, is just the first step.  Employers must also ensure that the policy is disseminated to all employees and that employees truly know to whom to turn if they have any questions or concerns.

Furthermore, training is key (and mandatory in California for employers with 50 or more employees).  At a minimum, supervisors and managers must receive sexual harassment training every two years.  The training must meet very specific requirements including length, who is able to provide the training, the format of the training, and the subject matter discussed.  Additionally, supervisors should be trained on the employer’s conflict of interest policy and why it is not a good idea for supervisors to be in a romantic relationship with a subordinate.

While California law only requires supervisory employees to receive training, employers should consider training non-supervisory employees as well.  Doing so will help ensure that every employee understands the company’s policy on prohibited harassment and its related policies concerning workplace romances, conflicts of interest and professionalism.  Furthermore, providing such training uniformly demonstrates the employer’s dedication to prohibiting harassment and discrimination and can help companies defend against such claims should they arise.

Quickly Address Complaints

Once an employer knows about any potential violations of company policies, or receives a complaint, it must take action and investigate.  An investigation is essential to finding out more information and to defending against potential legal claims.  While an investigation need not be completely flawless, it should be thorough and conducted by an appropriate investigator with sound methods.  Employers then must be ready to take action based on the investigator’s findings and provide closure to the complainant and other parties involved.

Not all workplace romances cause workplace troubles.  However, when they do, the strain on employers can be devastating.  Employers should protect themselves with appropriate workplace policies, training, and investigations so that one scorned lover does not destroy an otherwise happy workplace.


For over 15 years, James Y. Wu has advised and counseled employers ranging from less than five employees to Fortune 50 companies on employment law and HR issues. In January 2012, James established his own law office in Contra Costa County and he continues to provide day-to-day counseling to employers and a vigorous defense when companies are sued.  James also started his three-year term on the CCCBA Board of Directors in January 2012.  In 2008, James was the president of the Employment Law Section of the CCCBA served on that Board from 2007 to 2012.  James may be contacted at james@jameswulaw.com and www.jameswulaw.com.

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