Employment & Labor Insider

Happy Valentine's Day! (almost)

Psychology Today had a great article by social psychologist and professor Theresa DiDonato about nine questions one should ask oneself before starting a workplace romance. Of course, the article was written primarily from a psychological point of view, but I think the same questions work from a legal standpoint. Here are Professor DiDonato's questions, with my "legal/HR" answers.

No. 1: Why are you thinking of mixing love and work?

Why, indeed! If things don't work out, it's going to be awkward, and that awkwardness can create a fertile ground for claims of sexual harassment or retaliation. There is also the problem of actual or perceived favoritism. Given all of this, I don't want to tell you that you can't have a workplace relationship, but if you work closely together, you might want to refrain unless you are absolutely certain that (a) he or she is the love of your life and you will be getting married, or (b) this is a very casual relationship on both sides that will end amicably with no hurt feelings. (That large area in the middle is where much of the legal danger lies.)

No. 2: Are you both single, or would this romance occur outside existing partnerships?

Great question, Professor. As an employment lawyer, I'm not sure I've ever had a call from a client about two single co-workers who are involved in a relationship. It's those adulterous/cheating relationships that are the problem. I would defer to the Professor on this, but it's been my experience that people involved in extramarital affairs are emotionally very fragile -- perhaps because of the guilt, the feeling of being far "out on a limb" without knowing for sure whether one's affair-partner is going to stick with one (a fear that is magnified if kids are involved), and the possibility of getting caught and what happens then. In addition, you have additional parties to the emotional chaos - the cheated-upon partners.

Think I'm too pessimistic about Valentine's Day? I'm a hopeless romantic compared with Dan Schwartz of the Connecticut Employment Law blog and Jon Hyman of the Ohio Employer's Law Blog, both of whom are on record as hating Valentine's Day.  

Here's a scenario that I see pretty frequently. Married male supervisor has affair with married female subordinate. Female subordinate's husband suspects she is cheating on him, and he puts a tap on the phone. He catches his wife and her boss in lovey-dovey talk and blows up, threatening her with divorce and loss of her kids. She tells her boss-lover what's going on, and he starts thinking. "Hmm. Maybe this affair wasn't such a great idea. Some bad stuff could happen. I think I'll stay with my wife." So he breaks it off with his subordinate. Now she's high and dry, and her husband is planning to leave her and take their kids.

There is one way out for her. Can you guess what it is?

She tells her husband that her supervisor was sexually harassing her. Boom! She's off the hook with her husband, but now we have a lawsuit.

For this reason, when I conduct harassment training, I always warn my audience that the best way to be falsely accused of sexual harassment is to have an extramarital affair with a co-worker. Too many things can go wrong, and they usually do.

3. Are you both fully consenting to starting something?

You'd better be, unless you want to be accused of sexual harassment, not to mention stalking or assault.

4. Are you on equal ground, or does one person wield more workplace power, potentially, over the other?

Being "unequal" doesn't necessarily mean that your workplace relationship will result in a lawsuit. Being married (but not to each other) is, in my opinion, more legally risky than being in a boss-subordinate relationship. But this is definitely something to consider. If your true love is your boss, how do you think he or she will react if you decide six months from now to end the relationship? Even if things go great, what about the perception of favoritism among your co-workers? If you're the boss, are you really sure you can treat your employee fairly? Will it be unpleasant working together if you break up? Also, if you're the boss, see No. 2 above.

5. To what extent do each of you desire and enjoy office flirtation, and do you both interpret these behaviors in the same way?

A good question. My wet blanket lawyer's take is that flirting at work is another good way to ensure that you will be accused of sexual harassment someday.

6. What will the fallout be if your relationship ends?

See No. 2 and No. 4, above.

7. Will you disclose your relationship, and if so, to whom?

Be sure to check your employer's policy. Some employers require co-workers in a relationship to sign a formal agreement. Here's an example. (An agreement like this could help you and your employer defend yourselves in case the relationship goes bad and you are falsely accused of sexual harassment.)

Even if you aren't required by your company to sign a formal agreement, you should disclose the relationship so that your Human Resources Department and your bosses can decide whether one of you needs to transfer to a different position, or whether there are any other concerns that should be addressed.

If your employer does not have a formal policy on consensual relationships between co-workers, it's still a good idea to consult your Human Resources representative.

8. How will your flirtation, sex, or love affect your workplace productivity?

Badly. (DISCLAIMER: Not a legal opinion.)

9. Will management have a role in "managing" your office affair?

Once they know about it, they probably will. But I still think disclosure is the way to go.