If you own a company, chances are you've had to decide (and at times reassess) whether to allow consensual dating and romantic relationships among your employees -- or, in legalese, whether and to what extent to adopt an office "non-fraternization" policy.

Although there are no laws which outright prohibit interoffice relationships, as shown in the news of late, they carry obvious risks, such as:

  • potential loss of productivity of the employees in the relationship
  • others in the office feeling uncomfortable
  • awkwardness around those engaging in PDA
  • conflicts of interest
  • workplace strife and disruption

Lastly, when romantic relationships fail (and let's not kid ourselves -- they usually do), there is the possibility one or both participants may view the once blissful (and consensual) detente through a lens of revisionist history -- fertile ground for headline-grabbing and costly sex harassment litigation. 

On the other hand, many view workplace relationships as an inevitable byproduct of today's interconnected world. This trend may continue to gain steam. For example, polling suggests millennials are much more open to office romance than their older counterparts.

Given these competing concerns, how can you craft employment policies which protect both your employees and your business? 

The Law and Workplace Dating

Again, there are no laws which prohibit employee dating per se. Of course, as with any personnel policy or practice, decisions around employee dating will be subject to general anti-discrimination scrutiny. This means employers can face discrimination liability if, for example, it is shown they permitted dating among employees who are under 40 but not among employees over 40, among straight employees but not gay employees and the like.

Beyond these risks, the primary concern around workplace dating is that, one day, a participant in the relationship (scorned or otherwise) later claims the relationship was in fact a form of sex harassment. 

Notably for purposes of employee dating, there has also been some litigation surrounding "sexual favoritism," or the theory that it is unlawful discrimination for an employee to show preferential treatment to that person's romantic partner at the expense of other employees not involved in the relationship (although -- full disclaimer -- courts are not uniformly aligned on this issue, and employers in many instances may have sound legal and factual defenses). 

No matter how you look at it, both legal and practical risks abound when someone has to supervise (or even indirectly analyze or critique the work performance of) their special someone. With this legal backdrop in mind, here are a few tips for crafting non-fraternization policies: 

1. Do not allow managers to have romantic relationships with subordinate employees -- full stop. 

All the risks associated with interoffice dating are exacerbated when there is an inherent power imbalance between a supervisor and that person's subordinate.

However, if you find yourself in a situation in which you believe you have no choice (operationally) but to allow such a relationship, actively manage the risk. Do not bury your head in the sand and hope things work out. 

Make sure the manager has absolutely no input -- none whatsoever -- into the terms and conditions of their partner's employment. 

Lastly, in this context, you should give strong thought to having both parties acknowledge, in writing, the voluntary and consensual nature of the relationship. 

Provisions you might include in this document (sometimes called a "love contract") are an acknowledgement of the company's anti-harassment and anti-retaliation policies, an agreement not to engage in PDA in the office, and a commitment to inform the company if the relationship becomes "unwelcome" in any way, or if the employee believes they are subject to any form of retaliation or other inappropriate conduct.

Although this does not fully insulate you from later liability, and still might be perceived by some employees as heavy-handed or overly paternalistic, it no doubt helps to mitigate the risk and helps try to avoid/defend costly litigation.  

2. If you make the decision to allow peer-to-peer relationships, create a culture of transparency and openness. 

Some employers may decide that, for their culture and risk tolerance, it makes sense to ban all types of workplace dating. If, however, you decide to allow some form of peer-to-peer dating, address it head on.

For instance, require employees to report these relationships to management and/or to HR. Continue to encourage, and make it easy, for employees to report sex harassment complaints and continue to build a culture of shared responsibility. Although employee-employee relationships generally carry fewer risks than supervisor-employee romances, you may nonetheless consider utilizing some form of the "love contracts" described above. 

Regardless of your ultimate policy decision on this tricky issue -- whether you choose to ban all forms of workplace dating or you measuredly decide to be a bit more flexible -- be prepared to enforce your non-fraternization policies consistently and in a non-discriminatory manner. Be vigilant, do not make exceptions and treat all relationships the same -- regardless of the participants' gender or sexual orientation.

This article does not constitute legal advice. The views and opinions expressed in this article are the author's own and do not reflect the official policy or position of any other agency, organization, employer, company, or individual.

Published on: Mar 22, 2018
The opinions expressed here by Inc.com columnists are their own, not those of Inc.com.