You will probably never be able to eliminate the downside risks of sexual relationships at work, no matter how many policies you draft. So what should HR do to prevent turmoil once a relationship has ended?
Generally, the best policy is to leave well enough alone. If the relationship involved a supervisor and a subordinate, be alert to the possibility that the subordinate may claim there was coercion. If either employee violated a specific company policy, discipline is in order.
Whatever you do, don’t do anything that may look like retaliation against either of the former paramours.
The fact is, most ended workplace relationships don’t lead to lawsuits. It’s difficult for an employee to make a discrimination or sexual harassment case out of a consensual relationship.
Recent case: Evelyn Benders, who is black, went to work for a law firm as a legal secretary. She then engaged in a consensual romantic relationship with one of the partners—who was married to another partner. The relationship continued for five years, while Benders was promoted, got pay raises and thrived at the firm.
About two years after the affair ended, Benders’ former lover told her that she should start looking for another job because his wife was campaigning to get her out. Meanwhile, Benders didn’t lose any benefits or pay, and continued to work for the firm until she was finally let go at the wife’s insistence.
Benders sued, alleging sex discrimination and sexual harassment. But the 7th Circuit Court of Appeals rejected those claims, reasoning that the earlier affair itself was consensual, not coerced, and that Benders didn’t suffer economically during the relationship.
If she was forced out because the wife didn’t want her husband’s former lover around, that wasn’t sex discrimination—merely a decision based on her former consensual sexual relationship with the boss. In other words, she was fired for reasons other than sex discrimination. (Benders v. Bellows and Bellows, No. 06-1487, 7th Cir., 2008)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- In health care? Get ready for federal affirmative action scrutiny
- Don't get snagged in OSHA's beefed-up inspection machine
- EPLI coverage: Shopping for lawsuit security
- Terminating without giving a specific reason? Document rationale for the record, regardless