The latest corporate bombshell—the resignation of Intel CEO Brian Krzanich due to a “past consensual relationship with an Intel employee,” contrary to the company’s non-fraternization policy—left some people scratching their heads. Should an employer really be the romance police?
The answer is yes—especially when employees in positions of power are at center stage.
Sexual harassment is about power, not sex. Workplace romances between individuals at opposite ends of the power spectrum are sexual harassment claims waiting to happen. The stereotypical image of a wealthy, older man with a beautiful young woman on his arm is a testament to the ambiguous nature of “consent.”
Thanks to our enormous capacity for self-delusion, a powerful executive may believe that one of his direct reports “consented” to a relationship when she, just as legitimately, felt she was coerced into having an off-premises fling. Or a one-time happy lover, now a jilted ex, may have a change of heart about how the relationship unfolded. As a result, the narrative suddenly shifts. The risks for an employer are real: Unwelcome sexual advances or propositions translate to cognizable sexual harassment claims under state and federal law.
Legal risks are only the tip of the iceberg. Because employees are fascinated by affairs, workplace romances tend to have a ripple effect in the office. For instance, when an executive is suspected of sleeping with an employee, it can spark conversation about perceived favoritism. Speculation easily dissolves into judgment and gossip, ultimately damaging morale and impacting productivity.
While non-fraternization policies, often embedded in corporate codes of conduct, put a damper on office romance, they are intended to protect employees and prevent power abuses. As such, these policies must be carefully crafted to reflect the practical dynamics of the workplace. For instance, an across-the-board prohibition on romantic relationships between all employees, regardless of their position in the organization, will only rarely be an effective strategy. Romance is in our DNA; an overly restrictive policy may foster a culture of fear.
Instead, employers should design a policy by evaluating the risk for abuse of power in their workplace. That begins with taking stock of the workforce and company culture. For some employers, it may be enough to prohibit romantic relationships between a supervisor and direct reports. But more is sometimes required. Bearing in mind that power invites abuse and romance invites broken hearts, some employers should consider implementing a flat-out prohibition on workplace relationships for certain high-level employees. This may extend to those in finance, human resources, administration, and other departments that have access to confidential information—a tempting weapon in the hands of a rejected paramour.
A less drastic measure is the so-called “love contract.” Employers using this technique require employees to self-disclose romantic or personal relationships with coworkers. The employer asks the involved employees to attest to the consensual nature of the relationship, agree to abide by the sexual harassment policy, and report promptly anything that reflects any adverse change in the relationship.
Either approach, or a combination of the two, can be effective when implemented thoughtfully and applied consistently. But a “look the other way” approach is doomed to failure. The law requires employers to take all reasonable measures to prevent and remediate sexual harassment. Office romances are risky for personal and professional reasons, but that risk is amplified immensely when a power imbalance is at play.
Because employers are on notice that the potential for a misuse of power exists, and can lead to sexual harassment, they should proactively implement reasonable measures for addressing workplace romance.
Julie Moore and Marcie Vaughan are attorneys and human resources consultants with Employment Practices Group and consultants with The Expert Institute.
