Love in the Age of Lawsuits: Rethinking Policies on Employee Romance in the Workplace

​Nerd alert:  Let’s talk statistics for a sec.  62% of folks in the hospitality industry say they’ve engaged in some sort of workplace romance.  The industry’s a (pun alert) hotbed for it, consistently topping out among the leading five industries and coming in significantly higher than the national average.  But hospitality carries a more nefarious statistic too.  At 14.23%, more sexual harassment complaints come from the hospitality sector than finance (3.98%), real estate (1.95%), construction (2.52%) and tech (5.73%) combined.  With the #MeToo movement on fire, employers are reevaluating their policies on workplace romance.  There are essentially three ways to tackle it.  I fall in the Goldilocks camp; I think the third one’s just right.    

​#1.  The first option is a complete and total ban.  This is called a No Fraternization Policy and frankly, is about as sexy as it sounds.  NFPs can be narrowed to only prohibit romance between people with certain types of jobs (see option three), but an all-out prohibition is usually more hassle than it’s worth.  For starters, prohibitions don’t actually stop employee romance.  They just push it behind closed doors where it can be harder to investigate and substantiate alleged harassment.  Not to mention the fact that they create additional unnecessary burdens for employers.  The more you prohibit, the more you have to investigate and discipline consistently.  Failure to enforce policies consistently can expose you to discrimination claims.   
 
#2.  The second option is a Love Contract.  This is a formal agreement signed by employees confirming their relationship with the company and setting ground rules for conduct.   In theory, a Love Contract mitigates the risk of harassment claims by affirming that a romance is consensual.  In reality, they’re ineffective because they require employees to come forward and admit to a relationship in the first place.  With most workplace romances secret or short-lived, Love Contracts are a generally futile approach.
 
#3.  The third (and in my opinion, best) option is a two-part deal: (1) prohibit romantic relationships between superiors and direct subordinates only, and (2) let your rules on harassment and discrimination cover the rest.  Despite the issues with bans, it’s important to prohibit romance within a direct chain of command to avoid problems with perceived favoritism.  Otherwise, the legal duties imposed on employers to provide a safe and professional workplace free from harassment and discrimination should equally extend to cover any type of illegal conduct that could stem from employee romance. 
 
All employers should have a robust sexual harassment policy that specifically outlines prohibited behavior.  Instead of policing workplace romance, employers should set forth a general standard of professional conduct which all employees are expected to uphold.  This approach not only satisfies your legal obligation; it acknowledges the practical reality that romances will likely occur, and short of any illegal conduct, they are simply not an employer’s concern.