We spend most of our waking lives at work and with our co-workers. Co-workers date each other. It is a fact of life. Most people understand that there are good reasons not to date a co-worker. Yet, it is hard to understand how the conduct can and should be regulated. In most states, employers may enact a policy that bans dating within their organization. Although this may technically be legal, there are limits to which an employer may go to enforce the policy. People have a constitutional right to privacy. The overlap between employer rights to regulate the place of employment and an individual’s right to privacy is the gray area where many employment law difficulties arise.
Why Would an Employer Ban Co-workers from Dating?
An employer has legitimate concerns about co-workers dating. From an employer’s perspective, it is easier to adopt a dating ban policy than to deal with the many negative consequences that can arise from not having a policy in place. A ban on dating can act as a shield for the employer against employee complaints and concerns of the many issues that arise when dating is allowed. Examples include concerns about favoritism, low morale, high turnover, and reduced productivity.
If co-workers are dating and they work in the same unit, they can be distracted by their personal relationship enough to interfere with their focus on work. If other co-workers become aware of the relationship, they may be annoyed by the conduct, or be expected to pick up the slack. This can erode both productivity and morale.
Breakups Are Problematic
The issues of dating a co-worker will be exacerbated if the dating co-workers break up. One or both parties may be upset and too distracted to work effectively. Their upset can spill over to their peers. If the breakup is a difficult one, acts of retaliation, revenge, or anger can bleed into and taint the work environment. If one of them requests reassignment to a different unit, an accommodation could mean having to assign additional work to remaining staff or having to hire another employee and provide training to get them up to speed. It is likely that, in one way or another, productivity and morale will be negatively impacted.
Superiors Dating Subordinates Is a Terrible Idea
If dating co-workers are not peers but are at different levels within the organization, the risk of potential problems and even lawsuits is elevated. If a superior and their subordinate date, filling promotional opportunities within the unit become problematic. If the dated subordinate is selected, even if the selection is based on merit, others may believe the promotion was due to favoritism based on their personal relationship. In the other extreme, the superior may intentionally hire a different person to fill a promotion, even if their partner is the most qualified for the job, to avoid the appearance of favoritism. This can cause a different set of problems.
In a superior/subordinate dating relationship, allegations of sexual harassment, either real or fabricated, may be raised. Victims of sexual harassment are entitled to legal protection.
An allegation of sexual harassment against the company will at best require manpower to investigate, even if no harassment has happened. If it did, resolve the issue favorably to the victim. Investigating and resolving sexual harassment cases is time consuming and costly. It could result in loss of talent and expertise by either or both co-workers.
What Options Are Available to Employers?
An absolute ban on dating may appear to be the best protection for employers against problems that can arise when their employees date one another. However, that can itself cause morale problems and is difficult to impossible to enforce. Employers often choose to adopt workplace dating policies that are less than absolute bans yet still work to address many potential problems. Examples include:
Requiring disclosure of dating status
Prohibiting dating employees from working in the same division or department
Banning dating when one partner has authority over the other
Employers can state consequences for violations in their policy on dating restrictions. This is likely a best practice as the adage “forewarned is forearmed” implies. Consequences can range from official reprimand, reassignment to a different unit or location, to firing. States vary in the extent they protect employee rights to privacy. It is good practice to consult with a lawyer experienced in employment discrimination laws in your state before finalizing a policy restricting dating.
An employer’s dating policy needs to be clearly stated, shared with all employees, and reinforced periodically. Implementation is not necessarily easy. In the case of requiring disclosure, some employers opt to require the dating employees to sign an acknowledgement that they will act professionally. Others provide counseling to explain how their relationship can bear on enforcement of the employer’s other policies, such as their harassment policy.
Enforcement must be uniform and fair and consistently applied across all departments and at all levels, including high-level executives. Failure to be consistent in enforcing the policy restricting dating can lead to problems. In addition, if departure from the existing assignment is a consequence of violation of the policy, the employer should take care not to consistently place the burden of moving on female employees. Such would likely be an actionable case of sexual discrimination against the employer.
Flirting Is Another Concern for Employers
Before an employee attempts to date a co-worker, they may first flirt to see if there is mutual interest. Flirting is not illegal. However, when the flirtation is unwelcome, there is fertile ground for a sexual harassment claim. Everyone’s cues for welcome/unwelcome interactions are different, and some are more attuned to being subtly and even not so subtly rebuffed than others.
Flirtation can cross the line into sexual harassment territory if the recipient must repeatedly rebuff the flirtations. In addition, if other employees witness the flirtation, they may be made to feel uncomfortable. This can happen if the flirtation is overtly sexual and/or involves more intimate touching than a handshake or other benign gesture. A company may reduce the risk of overt flirting and prevent legal issues from arising with an effective policy restricting dating. Even a policy that simply discourages dating can serve to reduce the likelihood of overt flirting and the risk of sexual harassment claims.
Philadelphia Employment Discrimination Lawyers at Sidney L. Gold & Associates P.C., Protect the Rights of Workers
If you have been fired or otherwise reprimanded for dating a co-worker or if you have suffered sexual or other harassment at work, reach out to the experienced Philadelphia employment discrimination lawyers at Sidney L. Gold & Associates, P.C. We will explain your rights, including when it comes to sexual harassment, and we will investigate every case thoroughly. Call us today at 215-569-1999 or contact us online for a free consultation. Located in Philadelphia and Pennsauken, New Jersey, we serve clients throughout South Jersey and Southeastern Pennsylvania, including Wilkes-Barre, Scranton, Northeast Philadelphia, Bucks County, Chester County, Delaware County, and Montgomery County.