The History and Current Status of Anti-Fraternization Policies

Workplace relationships have always existed in a hazy grey area. Conventional wisdom (and a number of crude aphorisms) have long instructed workers not to engage in intra-office romances. However, it seems the instruction to keep your romantic life and your professional life separate is honored more in the breach than in the observance.


A recent survey revealed that more than 40% of respondents met their spouses at work. Similar workplace dating success rates were reflected in a recent Career Builder survey, where 38% of those surveyed noting that they had dated a co-worker at least once, with 31% of those relationships leading to marriage. Among younger workers, attitudes are even more lax, with nearly 85% of 18-29 year olds admitting that they would have no qualms about having a romantic relationship with a co-worker.


However, workplace romances are not without their perils. A number of high profile resignations and firings have resulted from office romances, including the those of: the CEOs of Restoration Hardware, Hewlett-Packard, the Lincoln Center, and Priceline. Moreover, Federal dockets are peppered with lawsuits arising from workplace romances gone bad, as well as a few that did not.


Employers have a legitimate business interest in regulating, monitoring, or prohibiting workplace romances. However, how savvy employers inject themselves into their employees’ private lives has changed, as attitudes over workplace romances have softened.


Strict Prohibitions On The Wane


For a time, workplace rules prohibiting office romances were very much in vogue. The rationale behind these policies was that by strictly prohibiting workplace relationships, employers essentially took monitoring the propriety of employee interactions, off the table. Some employer went so far as to prohibit married couples from working together, by enacting what have come to be known as “no spouse” or anti-nepotism policies.


However, the prevalence of these draconian policies is very much on the wane. In some states, workplace prohibitions of this sort are either expressly or tacitly prohibited by law.  Moreover, while non-spouse policies have been upheld against Constitutional and Title VII challenges in most Federal Courts, strong and well-reasoned arguments against the legal propriety of these types of policies are starting to gain traction.  Even where policies of this type are permitted, deviations from these policy’s uniform application can give rise to legal liability.


In their place a number of alternatives have arisen.


Policies Permitting Disclosed Relationships


Some employers require dating employees to disclose the relationship and sign what is known as a consensual relationship agreement.  These agreements have the advantage of making the relationship public and confirming that both of the parties are consenting and un-coerced participants. They also serve to inform the participants of the professional “ground rules” including: the need to avoid bias, the need to retain professional focus, and the need to comport themselves appropriately within the workplace.


The downside of these types of agreements is that it interposes the employer into the employee’s personal life. Notably, agreements of these types may require the participants to keep their employer informed of changes in their dating status. Moreover, HR staff may be obligated to advise their co-workers of dating ground rules in a way that feels invasive, awkward, and inappropriate. It also may make the employer an arbiter of the types of relationships that are permitted and prohibited. Furthermore, very often the very types of relationships that most need monitoring remain hidden.


Policies Permitting Relationships Without Prohibition


Other employers take a largely hands off approach to their employees’ private relationships. Liz Lonergan of Ben & Jerry’s notes with pride that they allow and expect that some of their employees may find romance in the workplace. As she notes, “We expect that our employees will date, fall in love, and become partners. If a problem comes up, we encourage employees to let us know and we’ll talk about it.”


Southwest Airlines has taken a similar approach, noting that romance among co-workers can create a positive culture of support. In relationship to this matter, the company’s official policy was once, “A happy employee is a productive employee.” In fact, a large portion of their workers are married to one another, more than seven percent.  Southwest touts its attitude toward workplace familiarity as one of the factors that earned it a place number three among America’s Top Ten most admired corporations.


However, pitfalls for this approach cannot be ignored. While management admonishes workers to comport themselves responsible, hurt feelings can create workplace tensions and occasionally give rise to legal claims. Regardless, the corporation that allows for workplace romances must make accommodations mediating the hurts, discomforts, or emotional strains that arise from failed romanced.


Moreover, there is evidence that managers may resent workplace romances, for professional not personal reasons. It has been shown that managers more harshly assess workers who they know to be in a relationship with a co-worker. Furthermore, it cannot be denied that attraction and the haze of infatuation can be the source of costly workplace distractions.


Finally, even consensual relationships can give rise to dire legal and professional consequences where one of the dating parties is subservient to another within the workplace.


Policies Prohibiting Relationships Between Certain Classes of Employees


The prevailing practice is to allow for limited dating relationships between co-workers who do not have direct contact within the workplace. Some employers preclude dating between parties within the same chain of command, or dating between direct reports. Other employers limit dating to parties who are not within the same department or work units. While other employers permit only dating between workplace laterals, or those with similar authority and responsibility.


The challenge associated with these types of rules remain the “reasonable exceptions.” Put another way, it is those relationships that are consensual, adult, and seemingly responsible and healthy, but which violate the letter of a workplace abomination. Often senior management may “look the other way”; however, a failure to enforce these policies uniformly can create huge legal risks.


Another challenge created by this rules are the unexpected “side cases” that have to be dealt with in an ad hoc fashion. An example is the long term dating couple where one party seeks a transfer into a position that would put them in violation of an established policy. While employers can revise policies to accommodate these needs, changes of these sort can produce morale issues, undesirable precedence, and liability exposure.


Of course, no one answer can be applied to all workplaces. The needs, size, work culture, and community standards of each workplace will dictate the policy that will work best. However, regardless of the policies adopted, it is important for each employer to communicate those policies clearly, enforce those policies uniformly, and amend those policies in a thoughtful manner when circumstances and developments warrant.