As a product of a workplace romance (that led to a 40-year strong marriage), I’ve always been interested in the legal and practical issues surrounding workplace relationships. But, in our modern workplace environment, where remote work remains prevalent and the #MeToo movement raised sexual harassment awareness, a reasonable assumption would be that workplace romances are on the downswing. Not so, according to a recent survey by the Society for Human Resource Management (“SHRM”). In fact, SHRM’s data suggests that the number of workplace romances is rising: one-third of U.S. employees are currently involved in or have been romantically involved with a coworker. This is an increase from 27 percent who reported workplace romances pre-COVID.
In addition to this data, there are certain industries that never pivoted to remote, or that continue to have high in-person population density—restaurants and hotels being perfect examples. In these industries, it’s likely that workplace romances are even more common. Given the prevalence of workplace romance, certain key questions should be evaluated:
1. Is workplace romance unlawful?
No. Title VII of the Civil Rights Act of 1964 is the primary federal law governing workplace sexual harassment. A consensual romantic relationship between coworkers does not, by itself, violate Title VII. Legal and/or employee relations issues can arise, of course, depending on the circumstances. Areas where issues typically occur involve, for example: when romantic relationships involve supervisors and subordinates, when a romance “goes bad,” when there are concerns with favoritism, or when two coworkers bring their romance into the workplace in a way that makes others uncomfortable.
2. When does a workplace romance cross the line?
There are many behaviors that may violate Title VII. Fundamentally, the statute prevents harassment because of a person’s sex or gender. According to the Equal Employment Opportunity Commission (EEOC), “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”
Harassment can include both verbal and physical behaviors. While Title VII does not generally prevent teasing, offhand comments, or other isolated incidents, such behavior can rise to the level of harassment if it is so frequent or severe that it creates a hostile work environment. The harasser can be a supervisor, an agent of an employer, a coworker, or even a nonemployee. The victim of sexual harassment can be anyone affected by the offensive conduct.
3. What kinds of policies should employers have?
Workplace romance is, generally, inevitable. But, there is not a one-size-fits-all strategy for employers to address romance in the workplace.
Most employers have sexual harassment policies outlining their expectations regarding behavior in the workplace. Many employers also have policies imposing a reporting requirement on employees in workplace romantic relationships. Employers may also conduct regular training relating to those policies—in fact, in some states, such as California, Connecticut, Illinois, and New York, such training is required. In addition, given the risks relating to workplace romance, employers may also want to consider implementing policies outlining employee conduct expectations related to romantic relationships with coworkers or even third parties, such as vendor employees. There are a variety of permutations to such policies, and some employers prohibit romantic relationships altogether. Others prohibit only romantic relationships between employees and their supervisors. Sometimes, such policies identify the situations in which romantic relationships are permitted (e.g., employees working in different departments) or the potential consequences of romantic relationships (e.g., an employee’s being transferred or having his or her employment terminated).
The policy appropriate for an employer depends on many factors, including the size of the company, the nature of the industry, and the workplace culture/environment. Further, for workplaces where romance is particularly prevalent, consideration should be given as to whether a heavy-handed policy may impede hiring and retention efforts.
4. Is a disclosure requirement always a good idea?
While disclosure of a workplace romantic relationship is a common component of employer policies, such rules can create unintended complexity. For example, employers usually do not define what exactly a “relationship” is, and employee definitions will often vary. Further, even when disclosure rules are in place, employees may simply not disclose—the same SHRM survey showed that 77 percent of employees who had a workplace romance did not disclose it to their employer. Employers should evaluate what consequences they will impose for violation of a disclosure requirement, and particularly when there is not agreement on whether a “relationship” meets the policy’s disclosure threshold. Further, some members of the LGBTQIA+ community may not want people at work—including HR and supervisors—to know about their sexual orientation or relationships. These considerations and others should be considered before a policy is drafted and implemented.
5. Should my workplace consider a “love contract”?
To mitigate the risk of Title VII claims, in addition to disclosure obligations, some employers ask employees to enter into a consensual relationship agreement, often called a “love contract.” A love contract is a written acknowledgement signed by both employees involved in a relationship confirming the voluntary and mutual nature of the relationship. Generally, a love contract states that both employees have received, read, and understood the company’s anti-harassment policy and that the relationship does not violate the policy. Love contracts can come across as heavy-handed or “big-brother-ish” by employees, so it is prudent to carefully consider their pros and cons.
Ultimately, when considering workplace romance, employers must develop policies and practices that balance the workplace’s culture, legal compliance, and practical realities. This needle can be challenging to thread, but – luckily – this is an area where the law provides a fair amount of employer flexibility to account for the realities of their workplace.