The Cupid Cop: When Love Strikes in the Office

by Renee Mielnicki, Esquire 

Depending on which survey you read, as much as 60% of today’s workforce has engaged in a romantic relationship at work. Of these, about 20% claim to have been romantically involved with the boss. Shocking numbers have also been reported showing that either one or both parties are married and are therefore engaging in an extramarital affair at work. There are many theories out there as to why these numbers are so high. Perhaps the growing number of women that continue to enter the workforce has lent to this percentage rise. Others speculate that an increase in the number of hours worked each week has something to do with it. Consider the fact that even if the average worker is working a regular 40 hour work week, he or she still may be spending more time with coworkers than at home. This factor alone may lead to stronger personal attachments to coworkers.

With Valentine’s Day here, you may be seeing flowers and candy down the hallways at the office.  Given the poll numbers, as well as the negative effects that these relationships may have in the workplace, employers are left wondering what to do when Cupid’s arrow strikes in the office.

Let’s first examine the risks an employer faces when a romance develops between two of its workers. Relationships between a supervisor and a subordinate carry the most risk both legally and from a business perspective. Since employers have a heightened standard of liability for sexual harassment committed by supervisors, even claiming consent by the subordinate may not shield the employer from liability. Subordinates may feel that consenting to a sexual relationship with the boss is the only way to keep their job. Sex-related conduct that is “voluntary,” in the sense that the person was not forced against their will to participate, may not be a defense to a sexual harassment suit brought by a subordinate against a supervisor. The question is rather whether the sexual contact was welcome and continued consent was voluntary. The appearance of favoritism is also an issue. Other co-workers may think that the employee gets unwarranted preferential treatment. This can result in resentment which then can reduce overall employee morale and productivity.

Romance between coworkers can also lead to sexual harassment claims, particularly when a decision to end the relationship is not mutual. The scorned party may use poor judgment and continue to pursue the other employee to the point that the advances are no longer welcomed. That employee could then file a sexual harassment claim since the harassment is occurring in the workplace. Even if coworker romance doesn’t result in a law suit, trauma from breaking hearts coupled with sharing office space with that former special someone can lead to conflict or reduced productivity for these employees.

Employers have several options as far as being a Cupid Cop in the office. First, employers can establish an anti-fraternization policy which strictly forbids romantic relationships between any of its employees. The advantage of such a policy is that the employer can use the policy to help defend itself in the event of a sexual harassment lawsuit. Pointing to the policy as evidence that fraternization among employees is strictly forbidden, as well as evidence of a sexual harassment policy and employee training, can help defend such a claim.

Before implementing a flat ban on workplace romance, employers should also consider the disadvantages of such a ban. Employees may feel that the company is dictating rules about their personal lives and is invading their privacy. This type of policy could also have the “forbidden fruit” effect making these relationships all the more appealing for thrill seekers thereby making the prohibition increase the harm. Moreover, the employer could lose good employees who want to engage in a personal relationship with a coworker, but choose to leave the company rather than break the rules.

A best practice for employers is to have a policy in place. This policy should, at minimum, forbid romantic relations between supervisors and subordinates since they have a greater likelihood for resulting in sexual harassment claims and are the most difficult to defend. The “Cupid Contract” is another option for employers wanting to mitigate the risk of sexual harassment claims that stem from office romance. A Consensual Relationship Agreement, the “Cupid Contract’s” legal name, is a document whereby coworkers declare in writing that they are engaged in a romantic relationship which is welcome and consensual. The small flaw in this approach goes back to those cheating hearts, like Bill Clinton, who risk public humiliation if the relationship is not kept private. Enticing these employees to not only disclose the relationship, but to put it in writing, creates a real challenge.

The biggest challenge employers face when deciding what type of policy to implement, or whether to implement one at all, is the realization that we are human first and professionals second. In the survey mentioned above, half of the individuals polled said they would engage in love at the office again, no matter what their employers say. Keeping this in mind, it is left to each employer to decide how best to handle the increasing presence of Cupid in the cubicles.

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