Dangerous Liaisons: Workplace Romance Policies & Sexual Orientation 8:40, February 27, 2017

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Dangerous Liaisons: Workplace Romance Policies & Sexual Orientation

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Office romances have increased, according to a recent survey. For many organizational leaders, this prompts a quandary. How should your organization’s policy address amour in the workplace in a fair and inclusive manner? Although there are many questions employers should consider when building or reviewing workplace romance (a.k.a., non-fraternization) policies, this article will focus on one in particular: are your managers prepared to apply these policies in a manner that does not give rise to sexual orientation discrimination?

Office Romances Increased

A national survey that Harris Poll conducted on behalf of CareerBuilder found that office romances reached a 10-year high in 2016. According to the results, which a CareerBuilder press release promulgated as showing the highest number of romances since 2007, 41 percent of the 3,411 employees surveyed have dated a coworker. Of those, 38 percent kept the romance secret; 19 percent of affairs involved at least one worker who was already married; 29 percent of romantically-involved workers have dated a higher-up; and 15 percent have dated their boss.

Avoid Unconscious Bias

Of course, companies need to have policies to prevent workplace romances from negatively affecting work. Supervisors dating subordinates is an especially tricky issue, considering the potential for sexual harassment. It’s been more than thirty years since the US Supreme Court ruled that an organization can be vicariously liable for a supervisor’s unwelcome sexual advances against a subordinate, even if the subordinate “voluntarily” had sexual relations with the supervisor. This means that it’s not enough to determine whether a supervisor and a subordinate had a “consensual” love affair; rather, employers must ensure that supervisory power over an employee’s job plays no part in any office romance. This is probably why ninety-nine percent of human resources professionals who responded to a 2013 survey said that their organization forbids these relations entirely.

Whatever policies are ultimately put in place, employers should take care to communicate them through training and enforce them evenhandedly. But what if the managers who are charged with enforcing a non-discriminatory policy are blindsided by unconscious bias in favor of heterosexuality? This can happen if they ascribe, consciously or subconsciously, to a heteronormative bias.

The Merriam-Webster Dictionary defines “heteronormative” as “of, relating to, or based on the attitude that heterosexuality is the only normal and natural expression of sexuality.” Even where there is no explicit policy in place that would treat certain sexual orientations as abnormal or unnatural, misapplication of an otherwise nondiscriminatory policy may privilege heterosexual behavior. This is especially true if unconscious bias arises in the enforcement of the policy.

To get an idea of how heteronormative bias works, ask yourself honestly: when reading about the data on workplace trysts, did you picture only opposite sex relationships? If so, you’re not alone. It’s often been noted that popular culture thrives on the idea of “opposite” sexes. For instance, a 2012 study published in Culture, Health & Sexuality revealed that the idea of opposite sexes is so prevalent, it even influences the behavior of transgender individuals in their relationships.

As if to illustrate the point, Vault.com literally pictured only male-female relations in a slide show publicizing the ranking company’s own workplace romance survey. Vault.com may have populated its slide show in this way based on (real or perceived) reader expectation, or it may have put no thought into the subjects’ genders at all. Regardless of motive, because only heterosexual relations are pictured, the slides exhibit a heteronormative bias.

Legal Considerations

Where sexual orientation discrimination is prohibited by law and/or policy, careful and caring organizations will note that uneven enforcement of a workplace romance policy could negatively impact sexual orientation. For example, “if a business fires Ricky . . . because of his sexual activities with Fred, [but would not have fired] Lucy if she did exactly the same things with Fred, then Ricky is being discriminated against because of his sex,” as we quoted the reasoning recently adopted by a  federal court in Alabama.

A 2011 federal case in North Carolina addressed the issue of discriminatory application of a non-fraternization policy. In that case, a former warehouse supervisor at Dole Food Co., Inc., was terminated for having a romantic relationship with a female subordinate in violation Dole’s non-fraternization policy, and for lying about the existence of the relationship, among other things. He claimed that Dole had discriminated against him based on his gender because workplace romances between heterosexual employee were treated differently under the policy than romances by same-sex employees.

However, the court threw out the gender discrimination claim, because the employee:

points to no homosexual relationship between a supervisor and a subordinate in the same department that was treated differently by management; . . .  and he has failed to identify any homosexual supervisor who was perceived to have lied to his or her employer and was not fired.

Jones v. Dole Food Co., Inc., 827 F. Supp. 2d 532 (W.D.N.C. 2011).

Although the employee in Jones failed to prove that the non-fraternization policy had been applied in a discriminatory manner, the court left the door open for cases in which there is comparative evidence of uneven application of the policy based on sexual orientation.

This would apply to all jurisdictions that prohibit sexual orientation discrimination, including federal circuits that adhere to the Equal Employment Opportunity Commission’s (EEOC) position that sexual orientation discrimination claims “necessarily involve sex stereotyping, gender-based associational discrimination, and consideration of an individual’s sex, [and therefore] fall within Title VII’s ban on discrimination based on sex.”

Despite rumblings about a possible sea change in federal enforcement priorities as a result of the election, the EEOC continues to pursue cases involving LGBT discrimination — including an appeal of a transgender discrimination case it lost in the lower court based on a religious exemption. Although the EEOC has also dropped its case in a separate transgender rights case, it’s unclear if this bodes a substantive change in enforcement priorities.

Additionally, the Trump administration has stated its intention to continue Obama’s executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.

There are good reasons to conclude that workplace LGBT law is evolving in a more inclusive direction. Don’t let your company become the poster child of how not to manage workplace romance policy.

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Steve Treagus
Stephen Treagus, JD's, previous practice as an attorney specializing in employment litigation exposed him to the rough-and-tumble world of employment relationships gone awry. Today, this experience informs his articles and courses, helping employers avoid costly litigation and get employment law right. Stephen earned his JD from John F. Kennedy University School of Law and his BA from Sonoma State University.

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