Romantic relationships at work: does privacy trump the dating police? Courts generally have upheld fraternization policies that balance employer and interests carefully and that are administered impartially.

• Author: Wilson, Rebecca J.

IN TODAY'S work-oriented culture, of fice romances and the related topics of sex and privacy have become important issues confronted by most employers. With more employees working longer days and spending so much of their time on-the-job, romantic relationships at work are developing more frequently. (1) Workplace romance may be the only option for employees whose workload limits their outside activities; but for employers, this trend may prove problematic as the potential liability associated with these relationships rises. (2)

A 1998 survey by the Society for Human Resource Management predicted that 55 percent of office romances would likely result in marriage, but that 28 percent of these office relationships may result in complaints of favoritism from coworkers, 24 percent in sexual harassment claims, and another 24 percent in the decreased productivity of the employees involved. (3) Statistics such as these have motivated employers to adopt prophylactic policies in an effort to avoid the potentially complicated and unsavory outcomes of office affairs and to maintain a strictly professional work environment.

As protection from litigation and potential liability, some employers adopt policies directly addressing dating in the workplace. These policies range from the very strict, such as a comprehensive prohibition of dating between employees, to the more lenient, such as a policy that actively discourages, but ultimately allows, employees to fraternize. (4) Even a simple policy requiring employees to notify management when coworkers are romantically involved provides documentation of a consensual relationship that could be helpful to an employer's defense against a sexual harassment claim, should one arise. (5)

Perhaps daunted by problems of implementation and enforcement, other employers have avoided adopting any formal policy explicitly addressing the issue of romance in the workplace, choosing instead to rely on unwritten rules or other policies already in place. Studies indicate that some employers choose to "rely on a quiet form of persuasion ... [b]elieving that despite having no written rules, their employees understand that as a matter of corporate culture or implied policy ... supervisor-subordinate relationships" will be discouraged or simply not tolerated. (6)

Although employers generally enjoy the fight to promulgate rules and regulations restricting dating on the job as they deem necessary, this right must be weighed against the countervailing privacy fights of their employees. (7) Courts considering these issues have balanced the employer's legitimate business interests in avoiding unnecessary litigation and potential legal liability and in maintaining a fair and professional work environment, against the privacy fights of employees. (8)

EMPLOYERS' BUSINESS INTERESTS

Many employers adopt anti-fraternization policies in an effort to avoid the numerous types of liability they might otherwise confront. (9) Liability may attach to an employer confronted with an office romance in a variety of ways. (10) First, a romantic relationship between a manager or supervisor and his or her subordinate may result in allegations of favoritism, with coworkers claiming that the subordinate has received preferential treatment as a result of the relationship. For example, the subordinate may receive longer breaks, be given preferred shifts or receive unfairly favorable reviews. Over time, this perception of favoritism could lower employee morale and productivity--two business elements that employers have a vested interest in protecting. (11)

These complaints also may trigger a sexual harassment claim against an employer under Title VII of the Civil Rights Act, 42 U.S.C. [section] 2000e, which enables employees to base claims of sexual harassment on, first, a "quid pro quo" argument where an employer conditions benefits, promotions or even employment itself on the receipt of sexual favors, or, second, an argument that sexual harassment has produced a hostile work environment. (12) Title VII further holds an employer vicariously liable for "actionable discrimination caused by a supervisor but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff victim," to quote the U.S. Supreme Court in Faragher v. City of Boca Raton. (13)

The U.S. Court of Appeals for the Fifth Circuit took guidance from the Supreme Court in Defenbaugh-Williams v. WalMart Stores when it held that employers could be vicariously liable for sexual harassment committed by supervisors. (14) One of Wal-Mart's district managers stated during a meeting with other employees that a certain female, the plaintiff employee, "would never move up with the company being associated with a black man." The manager later became the plaintiff's supervisor and instituted a series of disciplinary actions against her on what she alleged were "fabricated workplace-policy grounds," which culminated in her termination. She sued on a theory of sexual harassment.

The court held that Wal-Mart was vicariously liable for the sexual harassment committed by the supervisor. Concluding that the Supreme Court intended to extend principles of agency liability to "all vicarious liability inquiries [brought] under Title VII for acts of supervisors," the court concluded that Wal-Mart was liable for damages based on evidence that the manager had acted with malice or reckless indifference by terminating the plaintiff for having been involved in an interracial relationship.

Such a ruling exposes employers to increased liability for the acts of supervisors in various contexts, which may include the enforcement of anti-fraternization policies. This strict liability under Title VII provides yet another reason for employers to implement these policies with great care and to ensure that their staff is well trained in enforcing the policies. (15)

Another danger is that while two employees are romantically involved in a consensual relationship, neither will claim harassment, but after the romance ends, one party may come forward with the contention that the association was unwelcome, even coerced. This situation presents at least two problems unique to workplace relationships between managers or supervisors and their subordinates, because of the unequal bargaining power of the parties. First, if the subordinate is disciplined, demoted or terminated, he or she may allege retaliation. Second, the party who ended the relationship may bring a sexual harassment claim based on allegations that the other party is forcing him or her to stay in the relationship, stalking or continuing to make unwanted sexual advances, thus subjecting the complainer to sexual harassment. Even if the relationship does not terminate, co-workers may attempt to make a claim against the employer for sexual harassment. That claim may be viable if the employees involved in the relationship repeatedly display sexual favoritism or other inappropriate sexual behavior in the workplace that results in the creation of a hostile work environment. (16)

Even when the relationship does not involve a manager-supervisor and a subordinate, employers still face potential litigation and liability stemming from the romance. (17) Problems can arise, for example, when an employer decides to discipline, demote or terminate a party to a workplace romance even for unrelated reasons. Employees who previously complained of sexual harassment may allege that the disciplinary action was retaliatory. That is, the employee may bring a claim against the employer. (18) They then may also bring a gender discrimination claim, alleging that the employer's action was motivated by favoritism of one gender over another. (19)

Based on this potential legal liability and a reasonable desire to maintain a productive staff, an employer has a legitimate business interest in drafting rules and regulations that will help it to avoid the myriad of problems that office romances can create. (20) For instance, if an employer prohibits its supervisors from dating their subordinates, it may be less likely to face a quid pro quo sexual harassment charge. Similarly, if a company requires its employees to sign acknowledgement or consent forms when they enter into a romantic relationship with a coworker, they will have documentation on file to defend themselves from liability if a claim against them is later brought. (21) However, these rules, intended to shield employers from litigation, may, ironically, give rise to other forms of liability when an employer enforces them. When an employee is subjected to an adverse action in connection with their job for a violation of an anti-fraternization policy, the employee may challenge the employer's rules regarding employee relationships, arguing that the regulations constitute an invasion of privacy. (22)

EMPLOYEES' PRIVACY INTERESTS

At the heart of employees' interests in engaging in consensual workplace relationships lies their rights to privacy. In its original form, the constitutional right to privacy protected individuals from improper acts of government officials. (23) Since its recognition in the 1950s, however, the constitutional right to privacy has grown to encompass the autonomy individuals enjoy in...