SAFE SEX: A WORKPLACE OXYMORON?

A supervisor has a romantic interest in a subordinate colleague.  What can go wrong?  Let me count the ways!

• Scenario 1.  Supervisor asks the subordinate for a date.  Subordinate says, "No."  Supervisor asks again.  Problem:  "No" means no.
• Scenario 2.  Supervisor asks the subordinate for a date.  Subordinate says, “I’m busy.”  Supervisor hears, “ask me another time,” so the supervisor asks again.  Problem: Subordinate meant “I’d rather die a public and  painful death."
• Scenario 3.  Supervisor asks the subordinate for a date.  Subordinate says, "No."  Supervisor does not ask again.  However, supervisor subsequently takes adverse action against subordinate for legitimate reasons.  Problem:  Subordinate perceives adverse action to be retaliatory.
• Scenario 4.  Supervisor asks the subordinate for a date.  Subordinate says, "Yes."  They love each other until they hate each other.  Problem:  Subordinate claims that while she participated in the affair, it was not welcome.
• Scenario 5.  Supervisor asks a subordinate for a date.  Subordinate says, "Yes."  They date until they break up.  Problem:  Subordinate claims that while the affair was welcome, the supervisor is retaliating against him for ending it.
• Scenario 6.  Supervisor asks a subordinate for a date.  Subordinate says, "Yes."  They fall in love and remain in love.  Problem: Some employees are uncomfortable with all the loving.

Other than the above scenarios, supervisory-subordinate dating is not all that risky.

So how should employers address?

One option is to ignore.  Ignorance is not bliss in this context, although your litigation counsel may be living in bliss if you go this route.

At a very minimum, employers should advise supervisors of the risks.  With knowledge, some may avoid the thoughts that can lead to the actions that lead to the claims.  Yes, sometimes, thoughts do comes first!

However, employers may want to go further and prohibit supervisors from dating employees in their chain of command or subject to their institutional authority.  Of course, if you have such a prohibition, you need to enforce it!

But is such a prohibition really enforceable?  Or, will the relationships just go underground?  And, if the relationships go underground, doesn’t that create a risk that there won’t be the evidence to help prove a relationship was welcome if the relationship sours?

A middle ground is not to prohibit, but to require a report by a supervisor before dating, or attempting to date, someone in their chain of command or over whom they have institutional authority.  This provides HR with an opportunity to try to separate the two where possible.  At a minimum, it is an opportunity to confirm with the subordinate that any relationship is welcome, to remind him or her that he or she has the right to end the relationship at any time without fear of retaliation, etc.

Of course, this is a little awkward, and by a little, I mean very.  But it is much less awkward than a lawsuit.

Oh, and by the way, if you are in HR, think about your own institutional authority.  When looking for a date, look anywhere except your own backyard!  Because when it comes to lawsuits involving dating, there is no place like home!

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.