Presented on May 22, 2018 at the Parsons Behle & Latimer 30th Annual Employment Law Seminar by Liz Mellem

1. Parsons Behle & Latimer Employment Law Seminar
WORKPLACE DATING POLICIES
IN THE #METOO ERA
Liz M. Mellem
801.536.6694
amellem@parsonsbehle.com
parsonsbehle.com
TUESDAY, MAY 22, 2018 | THE GRAND AMERICA HOTEL

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 Yes, probably. But why?
– Manage risks created by employees’ relationships
– Combat: turmoil, drop in productivity, sexual harassment charges
• Strengthen legal defenses in sex harassment litigation
– Communicate standards of acceptable behavior to employees (make clear
what is and is not allowed)
– Not to control employees’ personal lives, but to ensure a fair, equitable,
and comfortable work environment for everyone
– Set expectation for employer action if employees’ are in a relationship
Does Your Company Need
a Dating Policy?

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Workplace Romances are Inevitable
 22% of workers have dated their boss
– Increased from 15% the year prior
 31% of workers who began dating at work ended up getting
married
 24% had an affair with a co-worker where one person involved
was married at the time
 Nearly 1 in 10 female workers whose romance soured left their
job because of it
 41% of workers had to keep their romance a secret

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 A consensual office relationship poses several risks for
the employer:
– Sexual harassment
– Sexual favoritism by participants
– Third-party retaliation
– Workplace violence
Dangers of Office Romances

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 Prohibited sex discrimination under Title VII of the Civil
Rights Act (and state/local equivalents)
 Generally involves unwelcome sexual conduct
 Risk is exacerbated by:
– Technology: text messages, emails, social networking
– Public displays of affection: kissing, hugging, inappropriate
touching
Sexual Harassment

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 Quid Pro Quo Harassment
– When supervisor seeks sexual favors in return for job benefit or
to avoid job detriment
 Hostile Work Environment Harassment
– When employer’s environment is so offensive or intimidating on
basis of sex that it alters conditions of employment and makes
environment abusive
Two Types of Sexual Harassment

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 Claims by participants
– Individual believes adverse employment action is result of office
romance or post-romance behavior
 Claims by third-parties
– Individual believes professionally disadvantaged because
he/she not dating supervisor like other employee
– Can be isolated, coerced, or widespread
Sexual/Paramour Favoritism

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 If unrequited affection or soured romance leads to
workplace violence, employer can have exposure to
claims for:
– Negligent hiring
– Negligent supervision
– Negligent retention
– Health and safety violations under OSHA
Workplace Violence

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 Damage to employee morale and productivity
 Higher turnover rates
 Negative publicity
 Conflicts of interest or other ethical problems
Practical Considerations

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 Conduct regular training
 Ensure that relationships are consensual
 Consider using a “love contract”
 Limit employer involvement
 Document everything
 Inform employees about possible communications monitoring
 Harassment hotline or other resource
 Draft realistic policies and apply uniformly
Overall Best Practices

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 Sexual harassment training is relatively inexpensive way
to reduce legal exposure
 Require sexual harassment prevention training
– Require employees to sign acknowledgement that received and
understood training
Regular Training is Key

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 Separate conversations with each individual:
– Confirm relationship is consensual and free of coercion
– Review company’s harassment policy (and other applicable policies)
– Ensure employee has signed applicable policies
– Stress importance of professionalism at work
– Caution against favoritism or activities which could create conflict of
interest
– Advise employee to report any harassing conduct at any time (particularly
after relationship ends)
Ensure Employees’ Relationship is
Consensual

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 What is it?
– Signed agreement which two parties agree relationship is
consensual and does not involve any sexual harassment
 Why use it?
– Limits liability when/if romantic relationship ends
Use a Love Contract

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 Acknowledgement that relationship is consensual, voluntary, and
no sexual harassment exists
 Agreement to behave professionally in office and at work events
 Acknowledgement that relationship will not interfere with work
performance
 Acknowledgement that employee is aware of company’s policy
and reporting procedures – and employee will follow both
 Signed by both parties
What to include in the love contract?

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 Respect employees’ privacy
 Employer’s concern should be only with the potential or
actual negative effect of relationship on the employer
– lost productivity
– Increased gossiping
– Favoritism, etc.
Limit Employer Involvement

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 Existence of documents, along with employees’
knowledge of documentation, protects employer from
future lawsuits
 Documents should include:
– Recording performance issues of romantically involved
employees
– Love contract
– Company policy acknowledgement
Document Everything

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 Make sure employees know emails, phone calls, etc. may
be monitored
 Ensure policy includes language notifying employee that
they have no expectation of privacy in workplace
electronic communications
Communications Monitoring

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 Ensure employees know that any harassment should be
reported immediately
 Provide harassment hotline for anonymous reporting – or
other resource
 Be committed to investigating reports made
Harassment Reporting Mechanism

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 Complete ban on office romances is unworkable
 Well-written policy will put you in better position to defend
against claims
 Make sure formal policy is:
– Applied uniformly without exception;
– Available to all employees; and
– Written acknowledgement from employee that read/received
– Place it next to/before/after the anti-harassment policy
Realistic Dating Policy

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 Workplace romances are discouraged
– Consider whether this includes vendors, customers, or other business associates
 Prohibit, limit or give guidance about romances:
– Can limit or prohibit supervisor/subordinate relationships or internal department
relationships
 Ensure guidance about supervisor/subordinate relationships is clear
– Consider prohibiting relationships between employees who (i) are in direct reporting
relationship, or (ii) could advance career through promotion, raise, etc.
– E.g.: if employees become involved, they cannot report to one another, cannot be of
significantly different rank and cannot work in the same department
– Possibility of transfer to another department (keep these as lateral as possible)
 Explain conduct expected from supervisors, managers, and employees
What to include in your Dating Policy?

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 Require disclosure of relationship to HR or other appropriate party
as soon as it begins
 Require employees to behave professionally and keep
relationship out of work environment
– Cannot act like a couple at work = no PDA and NO FIGHTING
 No sharing of confidential information
 Reiterate anti-harassment policy and reporting mechanisms
 Clearly state consequences for violating policy (e.g., transfer,
schedule change, termination)
Dating Policy Topics Continued

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 Silicon Valley Consent Model – Yes means Yes
– Facebook and Google are first to implement
• You can ask out your coworker ONCE. If the answer is anything other
than an unequivocal yes, it means no.
– “I can’t tonight. I have other plans.” = No
– “I’m really busy with this project, sorry.” = No
– “I have a partner.” = No
Dating Policy Example 1

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 “In order to minimize the risk of conflicts of interest and
promote fairness, [EMPLOYER NAME] maintains the
following policy with respect to romance in the workplace:
– No person in a management or supervisory position shall have a romantic
or dating relationship with an employee whom he or she directly
supervises or whose terms or conditions of employment he or she may
influence (examples of terms or conditions of employment include
promotion, termination, discipline, and compensation). In addition, no
employees working in the same department shall have such a
relationship. A department is defined as a group of employees who report
directly to the same supervisor.
Dating Policy Example 2

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 Prior Employee Relationships:
– [To the extent possible, a/A] supervisor or manager who has
had a previous romantic or dating relationship with a
subordinate or employee whose terms and conditions he or she
may influence will not be involved in decisions relating to that
individual's promotions, raises, termination, or other terms and
conditions of employment.
Dating Policy Example 2 continued

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 Individuals involved in a relationship covered by this policy may be asked to sign a document
acknowledging that their relationship is entirely consensual and free from coercion and
harassment. [If the relationship is covered by this policy and is between a more senior and
more junior employee, the more senior employee may be subject to demotion to remove the
conflict of interest. [EMPLOYER NAME] will not impose a demotion as a response to a
prohibited relationship between employees who are professional peers.] At the discretion of
[EMPLOYER NAME], [in addition to or instead of demotion,] one of the individuals involved
in the relationship may be subject to transfer or termination of employment. If transfer or
termination is appropriate, to the extent possible, [EMPLOYER NAME] will give individuals
involved in the relationship the opportunity to select one employee in the relationship who will
be subject to a change in employment status (transfer or termination). If the individuals
involved in the relationship decline to make this decision, [EMPLOYER NAME] will do so.
Dating Policy Example 2 continued

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 Professionalism:
– Employees are expected to conduct themselves in a professional manner at all times.
[Workplace dating or romantic relationships must not interfere with any employee's
professionalism, including treating others with respect and refraining from behavior that
may make others feel uncomfortable (for example, overt physical displays of affection
and using sexual language).] In particular, management personnel are expected to set a
high standard of professional conduct both at work and in any social setting at events
sponsored by [EMPLOYER NAME]. For this reason, management personnel are
prohibited from social interaction with subordinates that is or might be perceived as
inappropriate (for example, unwanted flirting, touching, or other behavior that may be
regarded as sexual harassment).
Dating Policy Example 2 continued

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 Discretion and Non-Discrimination:
– [EMPLOYER NAME] retains discretion in its enforcement of this policy.
Decisions made under this policy will be made based on operational and
business reasons and without regard to sex, race, color, religion, creed,
age (40 and over), national origin, citizenship, physical or mental disability,
military service or application, [OTHER APPLICABLE PROTECTED
CLASSES FOR RELEVANT STATE(S),] or any other protected
characteristic under federal, state, or local law.

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 Objective:
– [Company Name] strongly believes that a work environment where employees maintain clear
boundaries between employee personal and business interactions is most effective for conducting
business and enhancing productivity. Although this policy does not prevent the development of
friendships or romantic relationships between co-workers, it does establish boundaries as to how
relationships are conducted during working hours and within the working environment.
– Individuals in supervisory or managerial roles, and those with authority over others’ terms and
conditions of employment, are subject to more stringent requirements under this policy due to their
status as role models, their access to sensitive information, and their ability to affect the terms and
conditions of employment of individuals in subordinate positions.
– This policy does not preclude or interfere with the rights of employees protected by the National
Labor Relations Act or any other applicable statute concerning the employment relationship.
Dating Policy Example 3

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 Procedures:
1. During working time and in working areas, employees are expected to conduct themselves in an
appropriate workplace manner that does not interfere with others or with overall productivity.
2. During nonworking time, such as lunches, breaks, and before and after work periods, employees
engaging in personal exchanges in nonwork areas should observe an appropriate workplace
manner to avoid offending other workers or putting others in an uncomfortable position.
3. Employees are strictly prohibited from engaging in physical contact that would in any way be
deemed inappropriate by a reasonable person while anywhere on company premises, whether
during working hours or not.
4. Employees who allow personal relationships with co-workers to adversely affect the work
environment will be subject to the appropriate provisions of [Company Name]’s disciplinary policy,
including counseling for minor problems. Failure to change behavior and maintain expected work
responsibilities is viewed as a serious disciplinary matter.
Dating Policy Example 3 continued

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 Procedures continued:
5. Employee off-duty conduct is generally regarded as private, as long as such conduct does not create problems
within the workplace. An exception to this principle, however, is romantic or sexual relationships between
supervisors and subordinates.
6. Any supervisor, manager, executive or other company official in a sensitive or influential position with
[Company Name] must disclose the existence of a romantic or sexual relationship with another co-worker.
Disclosure may be made to the immediate supervisor or the director of human resources (HR). This disclosure
will enable [Company Name] to determine whether any conflict of interest exists because of the relative
positions of the individuals involved.
7. With regard to Paragraph 6, when a conflict-of-interest problem or potential risk is identified, [Company Name]
will work with the parties involved to consider options for resolving the problem. The initial solution may be to
make sure the parties no longer work together on matters where one is able to influence the other or take
action for the other. Matters such as hiring, firing, promotions, performance management, compensation
decisions and financial transactions are examples of situations that may require reallocation of duties to avoid
any actual or perceived reward or disadvantage. In some cases, other measures may be necessary, such as
transfer to other positions or departments.
Dating Policy Example 3 continued

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 Procedures continued:
8. With regard to Paragraph 6, if one or both parties refuse to accept a reasonable solution or to offer
of alternative position, if available, such refusal will be deemed a voluntary resignation.
9. Failure to cooperate with [Company Name] to resolve a conflict or problem caused by a romantic
or sexual relationship between co-workers or among managers, supervisors or others in positions
of authority over another employee in a mutually agreeable fashion may be deemed
insubordination and cause for immediate termination. The disciplinary policy of [Company Name]
will be followed to ensure fairness and consistency before any such extreme measures are
undertaken.
10.The provisions of this policy apply regardless of the sexual orientation of the parties involved.
11.Where doubts exist as to the specific meaning of the terms used above, employees should make
judgments on the basis of the overall spirit and intent of this policy.
12.Any concerns about the administration of this policy should be addressed to the director of HR.
Dating Policy Example 3 continued

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 EEOC
– Fantastic resource, especially for small businesses
– www.eeoc.gov
– https://www.eeoc.gov/eeoc/task_force/harassment
Additional Suggested Resource

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 Liz M. Mellem
801.536.6694
amellem@parsonsbehle.com
Thank You