Proponents argue workplace romances may improve office morale, stability, production and communication. Opponents assert that mixing business with pleasure is a recipe for disaster, not only for the parties involved in the relationship but also for coworkers and the company at large. While statistics show the public is increasingly more tolerant of workplace romances, that acceptance has not translated into fewer legal concerns for companies.

Although courts typically have not extended protections to plaintiffs in claims stemming from workplace relationships, employees continue to file claims at great costs to companies defending against consensual conduct. Courts generally reject discrimination and retaliation claims filed by a party to a relationship or by coworkers. Essentially, courts conclude these claims do not fit within the framework of Title VII’s protections because the improper conduct—whether directed at a participant or a coworker—is a result of the dynamics of the romantic relationship rather than the gender of the plaintiff.

The logic is that a party to a failed relationship cannot complain that adverse employment consequences meted out by a former romantic partner qualify as actionable conduct rather than plain “sour grapes” and spitefulness. Similarly, claims filed by third-party coworkers who are not treated as favorably as a supervisor’s employee paramour generally do not implicate Title VII’s protection because both sexes suffer the same results of unfair favoritism.

The exception to the rule that may result in liability to the company for “sexual harassment” occurs when “sexual favoritism in the workplace is sufficiently widespread,” such as when a supervisor’s conduct creates a message to a particular gender that they can only advance by engaging in sexual conduct with management.

Employers need to be aware of their potential liability in these situations, and rather than focus on preventing workplace romances, take steps to manage them and minimize future risk.

Draft a realistic romance policy and apply it to all employees. A formal policy should explicitly prohibit relationships that create an actual or perceived conflict of interest between employees. Make sure you clearly establish proper manager conduct and prohibit managers from having intimate relationships with subordinates. At a minimum, employers should require managers to disclose relationships with subordinates, take steps to ensure any direct reporting relationship between the employees involved is eliminated, and make certain the supervisor is not in a position to advance the paramour’s career. Document that each employee has read and agrees to abide by the policy.

Conduct regular sexual harassment training. Training is a fairly inexpensive way for a company to reduce its exposure. Companies can reduce their exposure by producing evidence of yearly training and a well-disseminated anti-harassment policy. If a case goes to court, you will be able to prove that your company exercised reasonable care to prevent and/or correct any sexually inappropriate or harassing behavior.

Confirm that a relationship is truly consensual after it has been reported. In separate conversations, remind each individual of your company’s sexual harassment policy and have them sign the policy. Stress the importance of professionalism at all work-related activities (i.e. No “public displays of affection”). Prohibit any favoritism or conflicts of interest and inform them they are obligated to promptly report any future harassing conduct if, or when, the relationship ends.

Document all written and verbal communications. You never know when you’ll need copies of e-mails or notes about what was said in a meeting or conversation.

Prohibit manager and subordinate relationships. It’s not uncommon for coworkers to file lawsuits alleging that they suffered discrimination due to a relationship with a supervisor. If strong discouragement of a relationship doesn’t work, suggest that one of them will have to move to a different position within the company or be terminated. Let the employees have the first say in who will make the transition. If they fail to do so, act promptly to make the decision yourself.

Consider establishing a harassment hotline. This “anonymous” line can potentially defend an employee’s claim that he or she was unable or afraid to report harassment or discrimination.

Ask co-workers in a relationship to sign a “love contract.” Dating and relationship agreements provide documentation that a relationship is truly consensual, and clearly defines the employer’s professional expectations of those in the relationship, including strict compliance with the company’s harassment-free policy.

By implementing these steps, you are taking the first step to protecting yourself against lawsuits and the disaster that can come from mixing business with pleasure.

L. Eric Dowell is Managing Shareholder at the Phoenix Office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

www.ogletreedeakins.com