Employment & Labor Insider

No-fraternization policies generally prohibit employees with certain family or personal relationships from being in a direct or indirect reporting relationship.

Let’s say Mel is VP of Sales. His significant other, Melanie, is one of three sales managers, all reporting to Mel. Any issues here? Do I even have to ask?

• Favoritism (“Melanie can do no wrong. Linus and Lucy, why can’t you be more like Melanie?”)
• Spillover of personal issues into the workplace (“Sorry I bit your head off, Linus. Mel and I had an argument this morning, and I've been in a bad mood ever since.”)
• Spillover of dysfunctional relationship issues into the working relationship (Mel or Melanie is an abusive partner)
• Anger or resentment from Melanie when Mel treats Melanie exactly the same way he treats his other managers (“But, Snookums, I’m special!”)
• Anger or resentment from Mel when Melanie offers constructive suggestions to Mel about work (“Boo, how dare you question my authority?”)
• Concerns from the other managers that Mel and Melanie may be talking about the managers’ stuff -- including job performance and personnel issues -- during their personal time together (“Long day, Babe. Confidentially, I may have to merge Linus’s territory with Lucy’s and let one of them go. What do you want to do for dinner?”)
• Sexual harassment claims (more about this below)
• Etc.

And that's why employers have no-fraternization policies.

Similar issues can arise from other relationships – ever heard about how the nepo baby got fast-tracked to Senior Executive VP even though he’s a complete moron? – but in my experience the most complicated issues arise from co-workers who are in consensual relationships and not married.

FOUR FRATERNIZATION POLICY "WHOS"

No. 1: To whom does it apply? A typical no-fraternization policy will identify the personal relationships to which it applies – usually spouses, live-ins, significant others, parents/children, siblings, grands, maybe aunts and uncles, and in-laws. It’s also a good idea to include a catch-all that gives the employer discretion to apply the policy to other personal relationships because the possibilities are endless.

No. 2: Who spills the beans? After defining the relationships to which it applies, the policy should require both parties to disclose the relationship to the employer. For example, maybe Mel and Melanie were just a regular boss-and-employee for five years, and then the spark got lit. They started dating, then they became exclusive, and then they moved in together. They might not have been required to disclose the relationship immediately, but at some point the relationship became serious enough that they should have disclosed it.

Another possibility is that Mel and Melanie had been in a relationship for a long time, but Mel worked somewhere else. Then Mel was recruited by Melanie's employer and got hired as Melanie's boss. Before or at the point of hire, Mel and Melanie should have disclosed their personal relationship.

No. 3: Who hits the road? Once the relationship is disclosed, the parties to the relationship should be required to decide between themselves which one is going to hit the road. That doesn’t necessarily mean that either party has to resign. If the company has an appropriate vacancy with a different reporting relationship, the departing partner may be able to transfer.

Why doesn't the employer decide who will go? This is mainly because (at least in the old days), the woman was expected to quit or transfer, which could give rise to a sex discrimination claim if the employer made that decision. I’m not sure this happens anymore, but it is still prudent from a legal standpoint for the employer to let the duo decide.

No. 4: Who gets in trouble for not disclosing? If they don't disclose the relationship, that should be ground to impose disciplinary action, “up to and including discharge,” on both partners. But reasonable extenuating circumstances should be taken into account. For example, your idea of a serious relationship might be a second date. But maybe Mel and Melanie thought it wasn’t serious until they became exclusive (and they did disclose their relationship at that point). Since their view is reasonable, and since they did try to comply, you can cut them a little slack.

AND THE "WHY"

Why is sexual harassment a risk, since we are talking about consensual relationships? Good question. The most common sexual harassment risk arises if Mel and Melanie break up. Let’s say Melanie ends it, and Mel is devastated. As most heartbroken people do, Mel starts calling Melanie at all hours, begging her to reconsider, crying, sending her flowers, and coming to her apartment to try to talk her into getting back together.

But Melanie doesn’t change her mind. Now Mel starts getting angry, and he may even express to her some veiled -- or not-so-veiled -- threats if she doesn't give them another chance.

Remember that Mel is Melanie’s boss. And now he’s creating a hostile work environment if not engaging in quid pro quo harassment. His overtures are no longer “welcome” to Melanie.

Another breakup-related scenario is not unusual. Mel decides to break up, and to get even Melanie falsely accuses him of sexual harassment, "framing" him with evidence based on their consensual relationship. (For this reason, employers should require employees who disclose a consensual relationship to sign a relationship agreement in which they acknowledge their relationship and that it is consensual.)

A third scenario is less common, but it does occur. Let’s say Mel and Melanie are together, and everything is wonderful. And they are quite open about expressing that in the workplace, if you know what I mean and I think you do. Then other employees could have valid claims for hostile work environment based on Mel and Melanie’s PDAs*.

*Public Displays of Affection, not Personal Digital Assistants.

So employers, if you don't already have a no-fraternization policy, adopt one. (This can wait until after Labor Day.)   

I hope you all have a great long weekend, and in case you’re interested, here’s a link to a Labor Day quiz I posted in 2022. Enjoy! Again!