RESTRICTIONS ON WORKPLACE ROMANCE AND CONSENSUAL RELATIONSHIP POLICIES

by Bob Gregg

The concerns of unwelcome sexual attention and aftermaths of “soured” office romance, and especially “quid pro quo” abuse of management power, have led a number of employers to implement policies prohibiting or restricting workplace romance. Some courts have warned that “employers who do not have co-worker dating policies leave themselves vulnerable to Title VII charges.” Broderick v. Ruder, 685 F. Supp. 1269 (D.D.C. 1988).

Balancing the Interests

Anti-discrimination/anti-harassment advocates have often strongly urged employers to adopt no fraternization/no office romance policies as effective tools to prevent sexual harassment.

Individual rights/civil rights advocates have often argued that these policies violate constitutional and person privacy rights, and are improper.

Unions have sometimes split the issue saying “it’s fine to have a policy telling management to keep its hands off workers, but don’t tell us we can’t mess around with our own members.”

Finally, even the anti-discrimination laws can seem to be in conflict, with findings that these proactive anti-harassment policies can be discriminatory themselves on the bases of sex, race or marital status.

Constitution

The First, Fourth, Fifth, and Fourteenth Amendments give basis for privacy, association, equal protection challenges to government intrusion into personal decisions concerning procreation, marriage and family relationships. Leving v. Virginia, 388 U.S. 1 (1967); Carey v. Population Services Int., 431 U.S. 678 (1977).

A restriction on workers’ romances should be “narrowly tailored” and is likely to be subject to a strict scrutiny test requiring strong evidence of a “meaningful nexus” between the restrictions and the government employers’ interest in imposing the policy. Briggs v. North Muskegan Police Dept., 746 F.2nd 1475 (6th Cir. 1984), cert. denied 473 U.S. 909 (1985).

Private Sector

Private sector employees have fewer protections. Courts have generally upheld employers’ restrictions on romance as long as there was some reasonable basis, and they did not intrude too far into an employee’s relationships with non-employees.

Grounds for Challenge

Wis. Stats. § 895.50 gives a cause of action for “unreasonable intrusion into private life.” One has to have a reasonable expectation of privacy that was unreasonably intruded upon.

A stated policy takes away the expectation.

Be careful. Publicly revealing what you find out when enforcing a romance policy may be invasion of privacy (see qualified privilege information below).

Public Policy

Wisconsin courts have not granted a public policy (protection of the romantic/marital/family relationship) cause of action. A no-romance in the workplace policy is not a threat to public policy. Ward v. Frito-Lay, 95 Wis.2d 372 (Wis. App. 1980).

Marital Status

Wis. Stats. §111.31 (The Fair Employment Act) prohibits marital status discrimination, with the §111.345 caveat that it is not discrimination to prohibit an individual from directly supervising or being supervised by their own spouse.

Under this law an employer cannot refuse to hire someone who is already a spouse (except under the caveat). However, nothing prohibits stopping romances before they develop to that point.

In Federated Electric v. Kessler, 131 Wis.2d 189 (1986), the court held that a company rule prohibiting romantic association of any employee with a married employee did not violate marital status discrimination prohibitions. It kept both married and single employees from being part of such a relationship and “pursuing extramarital relationships is not a protected right, the denial of that ability is not a denial of equal opportunity in employment.” At 203.

The State Equal Rights Division has followed with decisions stating that a company policy prohibiting dating among employees does not violate the Fair Employment Act if it applies to both married and single employees, and it affects only their relations with work-related people, not their relations with non-employees. Vaisman v. Aldridge Inc. (LIRC 10/21/91).

Federal Discrimination Laws

Courts have generally upheld the validity of consistently enforced policies which have some sort of business relatedness. However, under the 1991 Amendments to the Civil Rights Act of 1964, an employer should be prepared to show “job relatedness” and “business necessity” if the restrictive policy is alleged to have any form of disparate impact.

Inconsistent enforcement of workplace romance policies has also given rise to Title VII (race and sex) and ADEA cases for discrimination. Sarsha v. Sears Roebuck Co., 3 F.3d 1035 (7th Cir. 1993); Zentiska v. Pooler Motel, Ltd., 708 F.Supp. 1321 (S.D. Cal., 1988).

Be Careful What You Propose

Pushing too hard for a no fraternization policy was alleged to have caused harm to one in-house legal counsel’s career. She sued and lost. Carpenter v. Federal National Mortgage Assoc., 165 F.3d 67 (D.D.C. 1999). “Espousal of views for or against fraternization is not a surrogate for male or female,” and is not a stand against a discriminatory practice since the policy prohibits not just “unwelcome” discriminatory romantic associations, but all romantic associations. “A position on either side of this issue is in no way a proxy of gender bias.”

Basic Types of Policies

There is no requirement to have a policy on office romance. Most employers do not. (Be sure you do have an anti-harassment policy so employees can report unwelcome office advances.) If you choose to have a policy, there are four basic types:

1. No Fraternization. Prohibits all romantic advances, overtures, relationships by anyone toward anyone in the organization.

2. Power Model. Prohibits any romantic overtures, advances, relationships by anyone they have authority over, or even with anyone at a lower level in the organization in some policies.

3. No Extramarital Model. Prohibits anyone from being part of a relationship where one of the parties (or both) are married to someone else.

4. Consensual Relationships. Prohibits nothing. You just have to inform the organization of any romantic relationship so it can be confidentially verified that it is “welcome/consensual.”

Enforcement and the Qualified Privilege and Confidentiality

Employers have to gather, keep, and discuss information about employees in order to effectively manage. Some of this information is “personal and sensitive.” Some is negative, such as poor performance evaluations, discipline, or discharge. The employee at question does not want it “spread around,” harming one’s career and reputation.

The Qualified Privilege or “conditional privilege,” as it is termed in the chief Wisconsin case, Bett v. Ploetz, 20 Wis. 2d 55 (1963), enables managers to gather and discuss this sensitive information without liability as long as one stays within the scope of the privilege.

The requirements one has to show to establish Qualified Privilege are:

1. The information is reasonably necessary for the protection of the interests of one of the parties. This criterion is automatically met by a current issue affecting someone in the scope of the organization’s activities (job related). The organization has a valid “interest” in finding out about and solving work-related problems or rule violations by its employees.

2. The scope of the inquiry is limited to what is reasonably necessary to protect the interest. This means job relatedness. Once the topic goes too far into family, religion, sexuality, politics, or other non-directly related areas, it has left the scope and protection of the defense, and the Qualified Privilege disappears. So inquiry as to whether a workplace romance is consensual is proper. Going beyond that, into the details of what the couple is doing, is over the line.

3. The information is communicated on a proper occasion. This means it is a current issue within the time frames recognized by state and federal law or by internal procedures. Old, “stale” issues are not within the Qualified Privilege. Similarly, where an employer is on a fishing expedition to dig up dirt on employees for office politics or gossip, there is no Qualified Privilege.

4. The information is given to and confined to proper parties only. “Proper parties” means the small group that must process that particular issue. It can include the Personnel Manager, Affirmative Action Officer, and top Management who have a direct role in the decision making. It can include the employees who are directly involved (with warning about their duty to maintain confidentiality).

5. The process is conducted in a proper manner.

6. The entire process is characterized by good faith.

Bob Gregg is a partner at Boardman Law Firm of Madison, Wisconsin. He has over 30 years of experience in employment relations and has conducted over 2,000 seminars on employment law. Bob’s career has encompassed canoe guide, carpenter, laborer, Army Sergeant, social worker, educator, business owner and EEO officer. Bob’s emphasis is to help employers identify and resolve problems before they generate legal action. He has designed pay and absence policies, and solved salaried position issues, for numerous private and public employers.

Copyright © 2005 by Robert E. Gregg. All rights reserved.