How Common Are Workplace Relationships?
A 2018 study by Namely of 500 employees across the country revealed 40 percent of employees have engaged in an intimate relationship with a coworker, and 5 percent of those occurred between a direct report and a manager. Less than 5 percent of workers would willingly notify HR about their workplace relationship.
What Laws Regulate Workplace Relationships?
There are no express federal regulations addressing workplace relationships apart from Title VII’s prohibition against sexual harassment, and most states similarly lack legislation on the subject, so employers are mostly free to create their own policies or to decide not to publish an official policy at all.
Texas, like most states, does not have laws addressing workplace relationships in the private sector. For government employees, the state constitution has been interpreted to implicitly create a “zone of privacy” on unwarranted governmental interference into individual autonomy, which requires the government to show any intrusion on an employee’s personal life and choices was reasonably warranted for the achievement of a compelling governmental objective that cannot be achieved by less intrusive, more reasonable means.
Personal autonomy is not boundless, however. For example, the Texas Supreme Court has determined that public employees do not have a privacy right to have an adulterous affair even when the behavior takes place away from work and within the employee’s theoretical zone of privacy. City of Sherman v. Henry, 928 S.W.2d 464 (1996).
Texas, like most states, does not have laws addressing workplace relationships in the private sector. For government employees, the state constitution has been interpreted to implicitly create a “zone of privacy” on unwarranted governmental interference into individual autonomy, which requires the government to show any intrusion on an employee’s personal life and choices was reasonably warranted for the achievement of a compelling governmental objective that cannot be achieved by less intrusive, more reasonable means.
Personal autonomy is not boundless, however. For example, the Texas Supreme Court has determined that public employees do not have a privacy right to have an adulterous affair even when the behavior takes place away from work and within the employee’s theoretical zone of privacy. City of Sherman v. Henry, 928 S.W.2d 464 (1996).
What Issues May Arise with Workplace Relationships?
Even when workplace relationships do not present legal issues, they can present other problems such as reducing morale and productivity (particularly where relationships lead to favoritism and preferential treatment).
Some employers choose to establish non-fraternization policies and consensual relationship agreements. Non-fraternization policies prohibit social relationships between employees, although usually centering on those between supervisors and subordinates. Consensual relationship agreements are written attestations signed by coworkers in romantic relationships that acknowledge their relationship is consensual and agree that a breakup will have no adverse impact on job performance or outcomes.
Employers do not have an unfettered right to prohibit workplace relationships, though. Courts have held that a threat to terminate employment due to a workplace romance violates public policy and may form the basis for a wrongful discharge claim. Williams v. Joe Lowther Ins. Agency, Inc., 177 P.3d 1018 (Mont. 2008).
Some employers choose to establish non-fraternization policies and consensual relationship agreements. Non-fraternization policies prohibit social relationships between employees, although usually centering on those between supervisors and subordinates. Consensual relationship agreements are written attestations signed by coworkers in romantic relationships that acknowledge their relationship is consensual and agree that a breakup will have no adverse impact on job performance or outcomes.
Employers do not have an unfettered right to prohibit workplace relationships, though. Courts have held that a threat to terminate employment due to a workplace romance violates public policy and may form the basis for a wrongful discharge claim. Williams v. Joe Lowther Ins. Agency, Inc., 177 P.3d 1018 (Mont. 2008).
What Does an Employee Have to Show to Establish a Claim Related to a Workplace Relationship?
Employers that choose not to adopt a formal policy may subject themselves to liability for quid pro quo sexual harassment, hostile work environment, retaliation where a relationship goes south, and more.
Quid Pro Quo Sexual Harassment
An employee establishes quid pro quo sexual harassment under Title VII where they prove a supervisor because of sex subjected the employee to unwelcome conduct that affects a tangible aspect of the employment relationship.
Hostile Work Environment
An employee establishes a hostile work environment where they prove the employee belongs to a protected class; was subject to unwelcome harassment based on her membership in the protected class; the harassment affected a term, condition, or privilege of her employment; and the employer knew or should have known of the harassment and failed to take prompt remedial action.
Retaliation
An employee establishes retaliation where they prove the employer retaliated or discriminated against a person who opposes a discriminatory practice; makes or files a charge; files a complaint; or testifies, assists, or participates in any manner in an investigation, proceeding, or hearing. The employee must show she participated in a protected activity; the employer took an adverse employment action against her; and a causal connection existed between her protected activity and the adverse employment action.
Conclusion
Americans spend a significant amount of time at work, and by extension spend a lot of time with their supervisors and co-workers. Intimate relationships are likely to arise at some point in any workplace, so employers and employees alike have an interest in preparing for that possibility.
Even a positive relationship can subject employers and employees to liability under various federal and state laws, and the Me Too movement has in part emphasized the dangers of such relationships, particularly between supervisors and direct reports, where the power imbalance can complicate, if not obliterate, consent.
Even a positive relationship can subject employers and employees to liability under various federal and state laws, and the Me Too movement has in part emphasized the dangers of such relationships, particularly between supervisors and direct reports, where the power imbalance can complicate, if not obliterate, consent.
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