Recently, the Oregon Department of Justice released the findings of its investigation of former Multnomah County Chair Jeff Cogan for possible criminal conduct relating to the romantic affair he had with policy director Sonia Manhas. While the report concluded that the workplace affair did not result in any crime being committed, for the county, the damage already had been done. County officials were forced to waste significant time and resources dealing with the affair’s aftermath. Among rank and file county employees, morale nosedived.
For employers everywhere, the Cogen affair provides a graphic reminder of the harm that consensual sexual relationships may unleash on an organization. Sparks of romance can easily ignite an office brushfire.
Nonetheless the data suggests that such relationships are entirely commonplace. A 2013 survey by CareerBuilder.com revealed that 39 percent of respondents admitted to having a sexual relationship with a co-worker. Other surveys have revealed even higher numbers. Fifty-nine percent of respondents to a 2011 survey from Vault.com indicated that they had dated at co-worker at least once. So what, if anything, can employers do to limit the risk that such relationships pose to their organization?
Generally speaking, the law permits an employer to impose an outright ban on workplace romance. So-called non-fraternization policies that prohibit romantic relationships among coworkers have been upheld by courts and found to advance an employer’s legitimate business interests in avoiding conflicts of interest, an appearance of favoritism, and potential complaints of sexual harassment.
However, in practice, such an outright ban of workplace relationships is unlikely to be effective for most employers. A number of employee surveys across industries show that most employees regard non-fraternization policies as an unreasonable intrusion into the employee’s private life.
Moreover such policies give employees an incentive to deceive an employer, creating an “us versus them” mentality in the office. Another downside to a prohibition is that oftentimes employers are reticent to enforce the policy, particularly when the relationship involves a valued contributor to the organization. Inconsistent enforcement of the policy is worse than having no policy at all, and could potentially lead to claims of discrimination on the basis of disparate treatment of similarly situated employees.
More effective than an outright ban are restrictions on romantic relationships that create a conflict of interest. Limited policies that prohibit relationships between supervisors and subordinates, or employees within the same department or chain of command are easier to justify to employees and are more likely to be observed by employees.
In order to avoid the dilemma of, on the one hand, having to enforce discipline against a valued employee for conduct unrelated to performance of his or her duties or, on the other hand, failing to enforce the organization’s own rules, employers should craft their policies in a manner that provides them with a variety of enforcement options depending on the circumstances and positions of the employees involved.
Another option that some employers have implemented are requirements that employees who engage in romantic relationships with supervisors or subordinates sign “love contracts” –informed consent agreements, indicating that the parties agree that the relationship is consensual, and that it will not interfere with the work environment or the parties’ performance of their duties.
Such agreements place the onus on employees to disclose the relationship and notify the employer should the relationship lead to unwelcome behavior by one of the parties. However, again in practice, the policy may prove difficult to implement. It is difficult to imagine a more effective mood-killer than breaking out that agreement and signing on the dotted line.
Additionally, employees may resent the intrusion into their private lives. More important than any specific regulation relating to office romances, employers must establish a clear anti-sexual harassment policy.
The policy should provide employees with a clear definition of what sexual harassment is and what types of conduct amounts to harassment. It should also give employees guidance about where they may turn with their complaints should they encounter harassment, and about the response they may anticipate from the employer when such complaints are made.
The policy should be reinforced with ongoing training and routinely updated to reflect any changes in organizational structure that affect where the employee may bring the complaint. Employers should contact their employment attorney to provide guidance and ongoing training in this area. Eliminating the office romance altogether is impossible. And even if it were, such a result may not necessarily optimal. (According to the CareerBuilder survey, 30 percent of the 58 percent of employees who admit to having engaged in an office romance ended up marrying their workmate.)
Nonetheless, employers can limit potential liability by clearly articulating expectations, by training employees on whom employees may turn to with complaints or concerns about sexual harassment, and by creating limited policies to avoid obvious conflicts of interest. While such policies may not have snuffed out entirely the Cogen/Manhas conflagration, they may have contained some of the damage that the affair inflicted on the county. José Klein is an attorney with Barran Liebman LLP.
He advises and represents management in employment law matters.
Contact him at 503-276-2199 or jklein@barran.com.
