Defense or invasion of privacy? Featured

10:31am EDT April 22, 2005
"Birds do it; bees do it; even educated fleas do it. Let's do it; let's fall in love." -- Cole Porter

When Cole Porter composed his famous list of two- and four-legged lovers, he left out co-workers. But work place romances have been a fact of life as long as there have been work places.

The recent firing of Boeing CEO Harry Stonecipher over an intracompany affair has some employers asking whether it's time to put a halt to holding hands at the water cooler.

According to a 2003 survey by the American Management Association, most employers say no. Only 12 percent of those surveyed had formal no-dating or fraternization policies, and most of those only banned supervisor-subordinate dating. Only 1 percent had written policies outlawing all co-worker romancing.

When Boeing fired Stonecipher, it relied not on a no-dating policy but on its ethics code, which prohibits conduct that might raise questions as to the company's honesty, impartiality or integrity. Boeing said Stonecipher's affair with a company vice president "would impair his ability to lead" and could "embarrass" the company.

There was also talk of e-mails that contained enough intimate details to violate the company's electronic message policy.

The Stonecipher affair was consensual, and consensual sexual relationships are not illegal. Indeed, more people meet their future spouses at work than in singles bars. Dennis Powers, a Southern Oregon University law professor who recently studied the subject, estimates that there are 20 million workplace romances going on right now.

The AMA survey found that 30 percent of managers and executives had dated a co-worker, and of those, 44 percent married a co-worker.

But what happens when the relationship cools off for one of the lovebirds but not for the other?

The AMA survey found that one out of three workplace relationships was short-term. If the jilted suitor in such a relationship can't take no for an answer, a sexual harassment claim may be right around the corner. Repeated, unwanted romantic advances can create a hostile working environment for which an employer may be held liable if the victim complains and the employer does not promptly investigate and remedy the situation.

The best preventive measure an employer can take to avoid such claims is a strong written policy in which the employer clearly communicates to all employees its strong stance against all forms of harassment, the procedure for reporting harassment claims and the potential consequences of violating the policy.

But what if an employer wants to take the added step of banning romances between supervisors and subordinates, or between all co-workers? Is there any risk of a lawsuit from a supervisor disciplined for dating or from two employees whose relationship is broken up by the employer's policy?

Probably not; at least if things are handled with the appropriate sensitivity. No court to date has said that a no-dating policy is automatically illegal. But a too-broad or intrusive policy might lead to a groundbreaking (and expensive) lawsuit.

The principal attacks on fraternization policies have come from employees claiming invasion of their right to privacy or intentional infliction of emotional distress. In some states, including California, the state constitutional prohibition against invasion of privacy also extends to private employers.

Several years ago, a San Diego jury awarded two employees more than $6 million after finding that they were fired solely because they were dating. But in that case, the employer could not show that the relationship caused any disruption in the work place, and it also conducted an intrusive investigation into the employees' off-duty conduct.

Employees also have challenged no-dating policies in states that prohibit discrimination on the basis of marital status. If an employer prohibits spouses from supervising spouses (a policy upheld in most states), it also should be able to prohibit dating between supervisor and subordinate.

But if an employer prohibits its unmarried couples from working together while allowing spouses to do to, there might be a problem. Of course, if an employer can show that the relationship -- spousal or not - interferes with operations, separating the couple should be upheld.

Donald J. McNeil is a partner in the Chicago office of Barnes & Thornburg LLP. He concentrates his practice on labor and employment law and litigation matters. Reach him at (312) 214-8313 or donald.mcneil@btlaw.com.