Raymond Horgan, the District Attorney of Kindle County, declares “it’s Rusty’s case,” in the premier of Apple TV+’s legal thriller, Presumed Innocent. The “case” concerns the brutal murder of Carolyn Polhemus, a respected prosecutor who had an affair with her coworker—the Rusty Sabich. Rusty justifies his assignment based on merit (i.e., he “is better” than the rival prosecutor, Tommy Molto), but viewers know that Raymond selects his close friend to investigate the murder to thwart attempts by other prosecutors to gain leverage and weaken his chance at reelection. As expected, Raymond’s plan backfires. First, he discovers Rusty’s affair with Carolyn. Second, Rusty becomes the lead suspect in Carolyn’s murder. This hooking plotline takes many twists and turns throughout Rusty’s trial, but it is difficult to ignore from the start of the series that workplace romance has widespread effects.
Workplace romance is not uncommon; people do meet on the job and even sometimes end up in consensual relationships with whom they got to know in a workplace environment—but it poses legal risks for employers. Legal claims associated with workplace romance include, but are not limited to, the following:
1. Sexual Harassment.
Sexual harassment in the workplace may be described as quid prop quo and/or hostile work environment.
Quid pro quo harassment applies when a supervisor seeks sexual favors in return for a job benefit or to avoid a job detriment. Employers are strictly liable for quid pro quo sexual harassment involving supervisors.
Hostile work environment harassment based on sex occurs when an employer’s work environment is so offensive or intimidating based on sex that it alters the conditions of employment and makes the work environment abusive. Employers may be vicariously liable for hostile environment harassment by supervisors and can be held liable for hostile environment harassment by non-supervisors if the employer is actually or constructively aware of the harassment.
2. Sexual Favoritism by Participants.
Employers may face legal claims when individuals involved in a consensual romantic relationship believe that an adverse employment action against them is a result of an office romance or behavior exhibited after that romance.
3. Sexual Favoritism by Third Parties.
Claims alleging third party sexual favoritism arise when a supervisor engages in a romantic relationship with a subordinate, causing other subordinates to believe they are professionally disadvantaged.
4. Retaliation.
Employers may face liability because of romantic affiliation between employees under a theory of third-party retaliation. Under this theory, an employee brings a lawsuit alleging that the employer took an adverse employment action against them in retaliation for the activity of a spouse, partner, or other associated party.
Employers can take steps to avoid the risks in ways that are less extreme than a universal ban on workplace romance. Best practices include uniformly applying well-drafted workplace romance policies. Best practices also include conducting sexual harassment training to educate their employees and assist with a defense in sexual harassment claims.
Should you become aware of a romance between employees in the workplace, best practices include:
- Ensuring that the relationship is consensual.
- Respecting the employees’ privacy and limit involvement in the relationship.
- Documenting everything that can be documented about the relationship and performance issues of the employees who are in a relationship.
Considering using a “Love Contract,” a signed agreement in which the two parties in a relationship agree that the relationship is consensual and does not involve any sexual harassment and agree to behave professionally in the office and at work events. Dealing with workplace romance can feel invasive and uncomfortable; however, following these best practices can limit exposure to the risks associated with the relationship.
Victoria Creta is a senior associate at Fordharrison.
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