Review Your Company Dating Policy in Light of #MeToo Movement

Anti-harassment and dating policies should be in same section of handbook

By Allen Smith, J.D.
Jan 31, 2018 - SHRM

Dating policies have become pretty common among employers of all sizes. But with the advent of the #MeToo movement, legal experts say employers should give their policies another look to be sure they are logical, easy to follow and are presented in the best light to employees.

Sometimes referred to as fraternization or anti-dating policies, these rules typically are designed to manage romantic relationships in the workplace. To be sure, dating is common among employees: 36 percent have gone out with a co-worker, 30 percent have dated someone in a higher position than them, and 22 percent have had a workplace romance with their boss, according to a 2018 CareerBuilder survey. While some of these relationships work out well or end on pleasant terms, others turn into bitter break-ups that ultimately lead to legal issues.

For example, employers should be particularly aware of the risks of future harassment claims and favoritism charges that may result from a supervisor dating a subordinate, said Steve Miller, an attorney with Fisher Phillips in Chicago.

Elements of a Dating Policy

According to a Jan. 25 XpertHR report on workplace romances, a dating policy typically includes statements about:

The policy's goal of upholding appropriate boundaries between personal and business relationships.
The employer's decision whether to prohibit or just discourage fraternization between managers and subordinates.
The requirement to report participation in such relationships, including those with vendors and other business associates.
The employer's right to modify reporting structures, such as transferring a boss who is in a relationship with a subordinate.
The prohibition on physical contact between employees during work hours.
The employer's anti-harassment policy and harassment-reporting mechanisms.

Transfers should be lateral for employees involved in relationships between supervisors and direct reports, said Kimberly Harding, an attorney with Nixon Peabody in Rochester, N.Y. "When consensual relationships sour, the fallout can be dangerous for employers, particularly because this scenario creates an incubator for potential #MeToo experiences," she said.

Joyce Chastain, SHRM-SCP, a regulatory compliance consultant with The Krizner Group in Tallahassee, Fla., said that nonsupervisory relationships also can put an organization at risk. Imagine that an employee who is a high performer starts dating a colleague who doesn't perform as well. If the relationship ends and the high performer is promoted while the low performer is fired, the discharged employee might be likelier to sue for unlawful discrimination than if there had been no relationship.

Put dating and anti-harassment policies near each other, recommended Rachel Ullrich, an attorney with FordHarrison in Dallas. "I often see employee dating policies in completely different sections of the employee handbook than the sexual harassment and retaliation policies, even though they deal with similar subject matter," she said. "This can lead to disjointed, conflicting or confusing policies."

Love Contracts

Love contracts, also called consensual relationship agreements, might be used not only for supervisor-direct report relationships but also for dating among co-workers at the same job level. The agreements present the dating policy to the employees in a relationship and seeks their written consent to the workplace guidelines. Chastain recommended using a relationship agreement as soon as an employer learns of a workplace romance.

"It would be wise to review any such agreements to see if they can be strengthened, including the employee acknowledgment of the consensual nature of the relationship and the company's [harassment] complaint reporting avenues," Miller noted.

A subordinate employee's refusal to sign a love contract is a red flag, Ullrich said, and the employer should ask why the employee refuses to sign. Is the relationship not as consensual as the parties claim? Has the subordinate ever felt pressured during the relationship? "An employer may need to conduct an investigation into these issues if an employee refuses to sign the agreement," she said.

But she added that employers need to be careful to balance the company's need to protect itself from harassment claims with employees' privacy rights.

Employers increasingly are barring any romantic relationships between managers and nonmanagers, even if the employees are willing to sign a love contract acknowledging they are both willing participants in the relationship, said Nick Reiter, an attorney at Venable in New York City.

In the past, love contracts were more prevalent when a supervisor and subordinate were in a relationship, even if the supervisor wasn't the subordinate's boss. "In light of the #MeToo movement, employers might more actively consider such agreements between co-workers," Miller stated.

However, Patti Perez, vice president of workplace strategy with HR consultancy firm Emtrain in San Francisco, said love contracts "are silly and useless." They are "an invention from the legal world that tries to control human emotions," she remarked. The employees say in writing that they will notify the company if their relationship ends, but that doesn't mean they'll keep that promise. "I don't see how you enforce it," Perez stated.

For Miller, "the question of whether an employer should require such contracts depends entirely on the employer's particular culture and their risk aversion for litigation."