November 5, 2019
This week, fast food giant McDonald’s announced the firing of its CEO, Steve Easterbrook, because Mr. Easterbrook engaged in a consensual relationship with another McDonald’s employee. Consensual romantic and sexual relationships between coworkers are quite common in the modern workplace, with roughly 1 in 3 employees having engaged in one. But when are they technically allowed? While these relationships are not illegal, per se, whether a company chooses to permit them, and if it does, under what conditions, differs depending on the employer.
Potential legal issues can arise for a company when one of the employees engaging in the relationship with a coworker is senior to the other. Companies can be held responsible for unlawful discrimination, including sexual harassment, and/or retaliation, and the risks for each liability increase when one employee holds potential power over the other. The risk that a consensual relationship veers into non-consensual territory is of prime concern. For example, even with a relationship that is primarily consensual, if the subordinate employee in the relationship is coerced into the relationship at its onset, or if towards its conclusion is coerced into continuing the relationship despite a desire to end it, based on the inference or promise of a work-related benefit or threat of a work-related detriment, it could give rise to a claim of quid pro quo sexual harassment.
Further, pressure to continue a relationship from one participant directed toward the other participant in the relationship who desires to end it may also create a hostile work environment, giving rise to a claim of sexual harassment even absent a quid pro quo dynamic. The potential for such claims may increase especially at the onset of a relationship, at the time a relationship deteriorates, or if and when one participant attempts to rekindle a previously ended relationship.
Additionally, there are risks that the subordinate in the relationship will be favored professionally over that of others at the company, which may give rise to potential employment discrimination or harassment claims by other employees. Although there are limits to the application of federal law alleging gender-based discrimination to favoritism of a single love interest or paramour, aside from the effect on employee morale, courts have found that favoritism exercised towards one who is coerced into a sexual relationship may give rise to legal claims by others. The risks outlined above could also exist for participants of consensual employee relationships, even when one employee is not senior in rank to the other, in the event that the relationship continues into the future and one of the participants is promoted and becomes either a supervisor of or more senior in rank to the other.
Regulating Relationships with Policies and Practices
All of these risks can cause a big headache for companies, so some prohibit consensual relationships in the workplace outright. Such a policy may exist in the company’s employee handbook or be identified by the company’s human resources coordinator. Other companies may only prohibit consensual relationships between employees of different ranks. In the case of McDonald’s, the company has a policy that prohibits consensual relationships between employees and their direct or indirect subordinates. Mr. Easterbrook was in violation of the policy with the admission of his consensual relationship with a subordinate, which led to his termination this week.
As an alternative to prohibiting romantic office relationships entirely, companies may ask that participants to a consensual relationship enter into a written agreement — often formally titled Consensual Romance in the Workplace Agreement, but frequently referred to as a “love contract” — which confirms that the relationship is entirely voluntary and consensual, and that it will not have a negative impact on work or affect the professionalism of the employees towards each other, even following any termination of the relationship. Such agreements usually prohibit participation by one member of the couple in decisions that could affect the pay, promotion, hours or performance assessment of the other employee in the relationship. Companies may also demand additional restrictions or requirements, such as a prohibition against engaging in public displays of affection at work.
Terminations and Trainings
But even without any policies or “love contracts” in force, a company may decide to terminate an employee because the employee has engaged in a consensual relationship. To the extent that such terminations are in fact discriminatory based on the employee’s gender or other protected categories under federal, state or local law, such termination is unlawful and subject to legal recourse by the employee. Absent the employee’s contractual rights to employment or discrimination, however, such terminations are usually lawful.
Regardless of how a company decides to address the issue of consensual relationships in the workplace, best practices demand that the company apply any policy consistently to all employees. Further, all companies should conduct sexual harassment prevention training for their employees. Such annual trainings became mandatory this year for nearly all employees and contractors in many states, including New York. With the assistance of these prevention strategies and consistent application of a company’s policies, employees can make better informed decisions about engaging in relationships with coworkers, including the parameters and potential risks associated with such relationships.
Reavis Page Jump LLP offers sexual harassment training to employers and employees from all fields through both our in-person and online training programs, taught by attorneys on our team who are exceptionally experienced and knowledgeable in the employment space. If you or your company is interested in receiving training from us, please see our Training Programs page to learn more.
This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. For more information, please contact RPJ Attorney Ethan Krasnoo, who counsels both companies and individuals on employment (including sexual harassment, discrimination, and contractual matters), entertainment and media, First Amendment, and data privacy matters. Mr. Krasnoo is admitted to practice in New York State, the U.S. District Courts for the Southern and Eastern Districts of New York, the U.S. Court of Appeals for the Second Circuit, and U.S. Tax Court. Attorney Advertising.