Contributors

Christian Scali

Founder and Managing Shareholder

Office relationships and romances can be problematic, but they are bound to happen, even post-pandemic when businesses are operating in a digital space. For any employer, there should be safeguards and protocols to ensure employees are working in a healthy environment.

To be clear, there is no law that prevents employees of a company from engaging in a consensual romantic relationship. However, there are laws that employers must follow to prevent harassment and unhealthy situations that can be the natural consequence of those relationships.

The Fair Employment and Housing Act (“FEHA”) exists to prevent hostile, offensive, oppressive, or intimidating work environments that disrupt the employee’s productivity or tranquility in the workplace. It is easy to see how a relationship that ended badly or unwanted romantic advances could create situations where productivity and tranquility are affected.

But employers should note that “productivity” or “tranquility” does not have to be affected for liability purposes--it is enough for a Plaintiff to simply show that a reasonable person would believe it would be affected. As the late Justice Ruth Bader Ginsburg wrote in Harris v. Forklift Systems (1993) 510 U.S. 17 “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.”

Considering these requirements, employers should take proactive steps to avoid these problems and potential liability.

As a preliminary matter, California law requires all employers of five or more employees to provide 1 hour of sexual harassment and abusive conduct prevention training to nonsupervisory employees and 2 hours of sexual harassment and abusive conduct prevention training to supervisors and managers once every two years. This training is often in the form of online videos that employees must watch, but employers should take the extra step of speaking openly to their employees about the importance of creating a safe work environment.

Generally, it is always better to err on the side of transparency. Employers should welcome employees to disclose romantic relationships, so that steps can be taken to protect all parties. Such steps could include limiting the projects the employees work together on, a memorandum of understanding reminding the employees of the company’s policies and expectations, and detailed documentation of these conversations. The conversation should not be adversarial, but rather presented as professional dialogue about how all parties can make the workplace safe and productive.

In the end, business relationships are a lot like personal relationships, and they work best with open communication and mutual respect.