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It would be great if there were “bullet-proof” wording – on any topic – that would automatically prevent lawsuits. Unfortunately, we live in a highly litigious society where anyone can sue at any time for any reason, valid or not. It can be very expensive and time-consuming for a company to defend against a lawsuit, even if the company ultimately prevails.
Here’s some guidance on the major issues in dating policies. From a liability perspective, it is not critical that a company have a written policy on dating. It IS critical that a company have a written policy prohibiting sexual harassment in the workplace.
A survey by the Society for Human Resource Management (SHRM) on Workplace Romance found that most companies do not even have a formal, written, policy on romance in the workplace. Of 612 members who responded, 72% did not have any formal written policy on dating. Of those, 14% said that they have an unwritten policy that is well-understood by workers and management alike. Only 13% of companies responding do have a written dating policy. Of those, only 7% forbid all dating at work.
In the 1970’s and 1980’s, it was very common for companies to prohibit all dating between employees. Today, 55% of romances that begin at work end in marriage. Some studies have even cited a higher level of productivity in dating couples who work together.
A joint study sponsored by Glamour Magazine and Lawyers.com (an unlikely pair if there ever was one) found that 41% of American workers aged 25 to 40 have had an office romance. A recent Valut.com survey indicates that inappropriate sexual conduct at work, right up to having sex in the broom closet, is common.
Gary N. Powell is a researcher who works on this topic. He has found that workplace romances can become a problem when one romantic partner reports directly to the other. Problems can also arise when there is a quid pro quo exchange, as when one partner completes the other’s job duties, or provides job benefits, in exchange for sexual or emotional involvement. Powell is the first to admit that there is not enough research on this fairly common behavior.
Another survey found that adulterous affairs sometimes create ill-will and reduce employee morale at work.
It is questionable whether a company policy can legitimately prohibit dating between employees and vendors, or employees and customers. It is quite likely that an employee who tested such a policy in court would prevail. Can you imagine Walmart or Google forbidding employees from dating anyone who used their products? That would deny the worker’s basic civil rights. Even if your company is smaller, this is the argument that the worker (and perhaps the ACLU) would use.
A better tactic in this case would be to address or limit the possibility of favoritism by the employee. For example, a salesperson would have to hand a key account over to someone else, if he was romantically involved with the contact person. Or, a purchasing agent would be required to recuse himself from the purchasing decision – or demonstrate that it was effective – if his wife or girlfriend was the vendor. In this case, you’re not forbidding the relationship – you’re just requiring that all employees make business decisions based on the company’s best interests. It becomes a performance issue, rather than a person issue.
The greatest liability for the company remains the possibility for sexual harassment. Every company should have a clear written policy prohibiting sexual harassment. Most require workers to sign a statement that the understand the policy and will abide by it.
It’s fine for one employee to ask another for a date. It becomes sexual harassment when the offer is rejected, and the invitations or attention continues. Some companies take a pro-active approach and ask workers who are dating a colleague to inform the Human Resources Department in writing that the relationship is consensual. This reduces the possibility of sexual harassment claims if the relationship sours.
It’s probably wise to prohibit romances between an employee and his or her immediate supervisor. Some companies do try to prohibit adulterous relationships, although this is a grey issue. Other prohibitions should focus on performance issues, like not being productive during work time, or awarding contracts to a vendor who is not the lowest bidder.
It’s perfectly permissible to ban sexual behavior at work. A good policy should spell out the consequences if a romance is negatively impacting the workplace. In general, the consequences should be the same for both partners. Firing the woman, while continuing to employ the male (or vice versa) can be de facto discrimination based on sex.
Ironically, prohibiting all dating at work often has negative results. Forbidden fruit is always more attractive. When all dating is forbidden, it simply forces employees to hide the relationship.