Supervisors Dating Subordinates
No matter how much employers fear them, office romances are not going away. In fact, employees may be getting more comfortable with the idea. How should employers handle office romances to protect themselves and comply with the law?
Romance at work is not slowing down. A 2014 Vault.com survey showed that 58 percent of workers have been involved in an office romance at some time during their careers, with 12 percent stating they had not but would be willing to date a coworker. Of those surveyed, 21 percent stated they had dated a boss or someone they supervise.
California employers may be held strictly liable for sexual harassment in the workplace by a supervisor, even if the employer did not know or have reason to know the harassment was taking place. What appears to be a consensual relationship between employees may not be. Similarly, an employee may continually pursue another employee even after the target of his or her interest has rebuffed the unwelcome advances, leading to hostile work environment claims.
Besides sexual harassment claims, office romances can cause decreased morale, decreased productivity and claims of unfairness. In fact, the California Supreme Court ruled that a supervisor who shows sexual favoritism toward subordinates can create a hostile work environment by sending a message that employees must be “sexual playthings” for management in order to get ahead in the workplace (Miller v. Department of Corrections, 36 Cal. 4th 446).
The issue of subordinate dating is an issue of power. Here are some possible outcomes that could be costly for employers.
Supervisor asks the subordinate out, she says sure, they date, fall in love, and live happily ever after. Any harassment? No.
Supervisor asks the subordinate out, she says no, that’s cool, and there are no future problems. Any harassment? No.
Now let’s go to the real world. Because in the real world, how does a subordinate say no? Not wanting to say what she really feels (“I’d rather hang by pins in my eyes than date you”), she says “I’m busy.” The boss hears, “She’d love to, but she can’t this time.” So he asks again. And again. Now it’s a problem for sure.
First Time, Second Time
One good way to talk to managers is to make the point that some things go over the line the first time (for example, “Let’s have sex,” or the use of the “N” word) and some things go over the line the second time (the persistent dating requests).
Employee Privacy Rights
Generally, California employers should avoid inquiring into an employee’s off-duty activities unless the employer can show an effect on the employee’s work performance. Privacy rights are an issue for supervisors to carefully consider before making inquiries or accusations. California employers are prohibited from discriminating against employees on the basis of lawful conduct they engage in during non-working hours. (Labor Code section 96, 98.6)
An exception exists where the conduct directly conflicts with the employer’s interests or would disrupt the company’s operations. In the area of supervisor-subordinate relationships, companies have a strong argument that there is an inherent conflict of interest given the heightened risk of sexual harassment claims and the effect on morale and productivity.
Now Comes the Performance Appraisal
Now back to the scenario of the supervisor who asked for a date, the subordinate refused, and it appeared that there was no harassment. So far so good, but in the real world, now comes the performance appraisal time, and guess what, it’s a negative one.
The subordinate will claim that the poor appraisal was due to her refusing the date request. Now merely asking for a date has morphed into a quid pro quo harassment case.
Take the case in which the boss and subordinate do date happily for a while, but the romance ends. And again, there’s a poor appraisal, or someone else gets a coveted promotion.
Now the subordinate can argue that the dating wasn’t consensual and that her poor appraisal or lack of a promotion was a result of the relationship having gone sour. Again, a seemingly nonthreatening situation turns into a harassment suit.
Finally, even when the relationship itself poses no problems, there’s still the issue of “paramour preference.” That is, other employees who allege that they are being unfairly treated on the basis of sex because promotions and raises are going to the person having sex with the boss.
Some organizations require that managers and supervisors report to management before they start dating, he notes. The company then decides whether there will be a conflict of interest and takes appropriate steps as needed.
As an alternative, your policy might say that you can’t date anyone with supervisory authority or the ability to significantly influence employment actions.
If you opt to prohibit dating, there’s one important thing to do before implementing the policy. Check out your senior managers to see if they have a history of dating employees. If senior managers have dated or are dating subordinates, you’ve got a problem, because if you don’t say no there, your policy is not meaningful.
Finally, recognize that prohibition of dating may simply drive relationships underground. Having them out in the open makes managing them easier.