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Privacy among Employee’s Personal Lives:
Establishing Rules, Risks, Legality and Future of
Relationships within the Workplace.
Natalie Poull and Kristin Anne Lindback
____________________________________________________
Employee Romance Overview
Employers willingly accept critical information from you.
They have your name, phone numbers, social security number, and other classified personal information that is stored for review. They can
scan phone calls, catch all the keystrokes you make and read your
emails. Further, they can access credit scores, potential liabilities and
even see how many parking tickets you have. Most employees accept
this as an everyday part of life that they cannot change. In recent years,
organizations have become more concerned with privacy rights at
work. Even though privacy of individuals at work is expected, the
extent to which privacy affects individual attitudes and perceptions is
less clear. After all, information on what you do after work hours, who
you are romantically involved with, and your relations with other
employees within the same office can lead to legal and moral issues.
Companies require employees to sign privacy agreements so
that no outsiders are allowed to know inter-company happenings. They
are protecting themselves for good reasons, such as competitive
advantages, and as soon as you sign that contract, you are promising to
keep their secrets to success. But who is looking out for your personal
privacy? The following information analyzes the understanding of what managers and employers know about your personal relationships
within the workplace and the ethicality of such an issue. Also, this
report will focus on past and present cases involving employee
relationships to determine what the future outlook is for confidentiality
within relationships in the work place. It is vital that employees know
their rights and the legal issues involved with signing a right to privacy
agreement so that the result is in the best interests of everyone within a
given company.
Practical Uses and Considerations
Nature of the Workplace
The workplace has changed dramatically from being mostly
male dominated to a more diverse and dynamic environment. This
change is initiated by economic, social and demographic changes.
These alterations have created a new workplace, one in which employee
attraction is easily sparked and romances blossom. In fact, a 2004
Glamour magazine survey of 1,747 employees concluded that 41% of
Americans between 25 and 40 have engaged in an office romance (De La
Vina).
Workplace romances are defined as relationships between
coworkers which are characterized by sexual attraction. They can be
classified as open relationships, where everyone else in the workplace is
aware of the relationship, or closed relationships, meaning it is being
kept a secret from coworkers. It is no surprise that keeping a secret in
an office is not easy. For example, there was a couple that was trying to
keep its relationship from becoming public in the office because the
man was a subordinate to the woman. Their office had a pet-friendly
policy, and when the woman brought her poodle to work, it was extra
affectionate toward the man over anyone else in the office. The poodle
gave their relationship away (De La Vina).
Workplace romances have almost always been a part of
everyday business, but their frequency has recently increased. Due to
technology, longer hours and changing morals and ethics, there are
many more motivations and consequences to this behavior. Companies
today are trying to create a family environment to enact company
loyalty and improve productivity. These new conditions that exist in
the office include proximity (working closely together to foster
interpersonal attractions), intensity of the working relationships (the
pursuit of similar work goals and feelings of accomplishment) and
willingness and motivation to become romantically involved.
According to a survey, there are four motives that encourage the
average employee to participate in a workplace romance:
Love Motive: This motive is considered when two people become
sincerely involved. They are truly in love and have a committed,
long-term relationship that could become permanent.
Ego Motive: This type of relationship is considered a fling. Those
who participate in this motive are often in search for personal
rewards such as excitement, adventure, or sexual experiences.
Job Motive: This is the utilitarian motive because one of the parties
is looking for work-related benefits (i.e. pay raise, promotion or job
security).
Power Motive: This is another utilitarian motive and usually
involves both off and on the job rewards. For example, one of the
parties may enhance power and visibility through the relationship
(Paul).
Relationship Types
There are three relationship types that are vital to the
understanding of the legality of workplace romance: supervisor
romances, coworker romances and conflict-of-interest romances.
Supervisor romances create a great liability for employers because a
superior is involved with a subordinate. In Meritor vs. Vinson, “the
Supreme Court ruled that agency principle applies to Title VII sexual
harassment suits. Under agency principle, employers are liable for acts
of their "agents" or supervisors” (Freeman, 182-185). This is seen as
damaging to lower subordinates. Because of these potential risks,
superiors can intervene on these relations, as they are a potential threat
to the company. Take, for example, Larry Ellison, the CEO of Oracle.
He had to defend himself against a sexual harassment lawsuit because a
former employee claimed he fired her after she threatened to end their
18-month relationship (Markels). Liabilities will be incurred when
coworker relationships become hostile, or if two individuals end the
relationship.
If policing happens, there is a chance that the employer may be
sued. For example, Wal-Mart lost a lawsuit when “it attempted to forbid
coworkers (one of whom was married) from dating” (Freeman, pg. 182,
4 pgs). The last relationship type is considered conflict of interest,
where there is a risk for the employer by dating someone such as a
competitor’s employee. Anyone who has a conflict of work interest
through their relationships will usually be directed to inform Human
Resources through company policies. Nondisclosure documents are
used to protect employers from these instances. Employee rights and
employer rights are very difficult to define within this context. IBM, for
example, tried to persuade an employee to stop dating another
employee at a competing firm. They strongly discourage office
romance, and state this in their Manager’s Manual: “A manager may
not date or have a romantic relationship with an employee who reports
through his or her management chain, even when the relationship is
voluntary and welcome” (Markels). Interestingly, a relationship ban
may breach the right to privacy under the Human Rights Act 1998. This
has, however, never been conducted (Personnel Today, 18). Also, a
company may have incurred a lawsuit because it had practices that
stated one would have to disclose that he was dating an employee from
a competing firm, even if it would not affect his overall performance.
Companies can also try to get around this by persuasion or
policing to keep the relationship from continuing. This is where the
issue of privacy comes along. If employers can read your emails, can
they hold anything they find in them against you, and persuade you
one way or another so you will follow their rules, or feel threatened by
them? These relationships create those critical questions.
Understanding of Romance, Privacy and Workplace Environment
Relationships in the workplace are continuously debated
because there is strong evidence to support both sides. For instance, the
gossip created by a volatile sexual-harassment case can cause a 20% dip
in productivity and bad publicity can dampen profits as much as 30%6
(Crain, Par 2). In addition, payments to these complainants have
increased to well over $25 million in total (Markels). This shows the
negative affects relationships have on corporations and how it is
especially difficult to deal with relationship issues.
Even though companies are highly affected internally by
gossip in private relationship issues, women are likely to be the
complainants in sexual-harassment cases and the public will soon know
about the issue. Women make up 85% of the consumer base (even
men’s products), and most likely will not support corporations that do
not treat women fairly. In addition, more often than not, Sheila from
Crain Corporation states that “liability has little to do with whether a
company has a dating policy and everything to do with how a company
responds once a complaint has been lodged” (Crain, Par 4). Many
attorneys state that “dating prohibitions are largely unnecessary even as
a smoke screen for firings because most workers can be fired at will”
(Crain, Par 4).
Research Topic for Further Investigation:
Research Findings
Workplace romance guidelines for employees:
Do not make any sexual or suggestive comments in the workplace.
Understand that men and women interpret things differently.
Be aware of your body language. Certain signals may be
interpreted as sexual vibes.
Watch how close you get to a group member. Workers in team
activities share an intimacy and someone may confuse it for
romantic gestures.
If you choose to enter into an office romance, know the risks
involved.
Do not cross the line according to the courts’ standards: whether a
reasonable person would consider the behavior abusive or hostile.
Workplace romance guidelines for employers
Be aware of any relationships going on in the office. It is better to
be prepared if a situation arises.
Establish a policy that prohibits professional decisions based on
sexual relations. Be sure that your policies do not invade employee
privacy. Do not establish a policy that outlaws an employee dating
another employee.
Know the laws and court rulings so you are always prepared with
knowledge of the precedence.
Establish a sexual harassment policy that ensures all employees
know what sexual harassment is defined as, and what the
implications will be in the workplace.
Always document notifications and actions. Keeping detailed
records will help you down the road in a court challenge.
Provide a workshop to educate employees about the risks of
workplace romances (Paul).
Graphical Analysis of Survey
A recent survey of 520 employees and 323 management
representatives nationwide discussed the legal rights to monitor
workers and has found that employees do not always agree to these
regulations (Workplace Privacy Poll, January 2005; Society for Human
Resource Management/CareerJournal.com). The following poll asked
employees (on a 1-to-4 scale where 1 = strongly disagree and 4 =
strongly agree) if they believed that employers have the right to
perform different types of monitoring. The results are as follows:
The following is a poll on relationships in the workplace and
productivity:
Interview: Sandra Wallace, Partner and Head of Equality
and Diversity, DLA Piper
A questionnaire has been provided which details information from a
lawyer that will provide insight on privacy and employee romance
issues.
Q: One of my managers is having an affair with a junior member of
his team. This is causing resentment among other employees. Can we
move her to another team?
A: Investigate the situation to determine whether there is a problem
and, if so, the best way to deal with it. Speak to the employees
concerned informally, explain your concerns and emphasize the
importance of maintaining professional behavior in the office.
If the relationship does cause problems, there may be steps you can take
that do not involve transferring either employee. For example, if the
manager has responsibility for the junior employee's appraisal and
there is a concern about favoritism, could another manager carry it out?
All viable options should be discussed with the employee and agreed to
in advance.
If a satisfactory solution cannot be found, it may be appropriate to
transfer one of the employees concerned, either temporarily or
permanently. However, be careful when considering which employee to
transfer, and ensure that you have objective reasons for choosing to
move one and not the other. If you simply transfer the more junior
employee, this could result in a claim for sex or age discrimination. If
the contract of employment does not allow you to transfer the
employee, you will need their consent.
Q: After a recent team meeting in the pub, two employees were
discovered in a compromising position in the boardroom. Can we
dismiss them?
A: You have a right to expect certain standards of behavior in the
workplace, and this almost certainly falls below those standards. The
incident should be treated as misconduct, but you should not take any
action without first investigating further and giving the employees the
opportunity to explain themselves.
Whether a warning or dismissal is an appropriate sanction will depend
on the circumstances, but to protect yourself against tribunal claims,
you should follow a proper procedure first and consider all the options.
Make sure you treat both employees the same, however, as inconsistent
treatment may lead to discrimination claims.
Q: An employee has complained about a colleague making unwanted
advances towards her at departmental Friday night drinks. These
drinks took place off work premises. Do we have to get involved?
A: Yes. As an employer, you could be vicariously liable for sexual
harassment - even if the unwanted attention takes place outside
working hours and off the premises - if there is a sufficient connection
with work, as is the case of a work social event.
The complaints should be promptly and thoroughly investigated. If the
complaints are upheld, a disciplinary sanction up to and including
dismissal may be appropriate.
Make clear to all employees that unwanted attention might give rise to
harassment claims.
Q: Should we just ban workplace relationships?
A: In practice, a ban is likely to be unsuccessful, and may in fact be
counterproductive, as it will lead to more secrecy about office liaisons.
This could cause problems if harassment claims are brought at a later
date.
A relationship ban may also be in breach of the right to privacy
under the Human Rights Act 1998, although this has not yet been
tested.
A more effective option is to have procedures in place to deal with
problems if they arise, and clear guidelines for staff involved in office
relationships about the standards of behavior expected.
Before implementing a procedure, you should identify where the
organization may be exposed to potential risks, such as breach of
confidence, conflict of interest or supervisory issues. Managers should
be provided with guidance and training on how to implement and
monitor the policy.
Q: Can we at least require employees to tell us if they begin a
workplace relationship?
A: It has become more common in recent years for employers to require
staff to notify their manager or HR department if they become involved
with a colleague, or even to require employees to enter into a so-called
'love contract', where both sign an agreement stating that the
relationship is consensual, and that they understand the sexual
harassment policy.
The difficulty with these types of measures is that they are extremely
difficult to apply and enforce. For example, at what stage do you
require the disclosure of the relationship? Also, these measures do not
protect you against tribunal claims. If an employee brings a claim of harassment as a result of a workplace relationship that has gone wrong,
it will not assist the employer to argue that the employee failed to
disclose the relationship.
Powerful Statistics from Survey Results:
Statistics from the American Management Association about privacy
and employee romance are as follows:
* 69 to 84% - Opt for the "no policy'' route for companies, e.g. Time
Warner, AT&T and many universities.
* 12% - Company had a policy (American Management Association).
* 92% of those said the only policy they had concerned relationships
with subordinates.
* 30% of the 391 managers polled admitted to dating a coworker
themselves.
* 44% of the dating managers wound up marrying their colleague,
and another 23% became involved in a long-term relationship.
* In a 2003 Vault.com survey, 59% of 1,118 employees polled
admitted to dating a colleague. An additional 17% said they would
like to.
Consequences of Workplace Romances
There is a very fine line between regulating workplace
romances and invading your employee’s privacy. On the one hand,
romances in the workplace can have very severe risks and sometimes
illegal consequences for the parties and the company. On the other
hand, many believe employees should have the right to date whomever
they chose, and their personal relationships should be of no business to
the employer. There are both individual, as well as organizational,
consequences in the company due to workplace romances. These risks
can be significant determining factors as to whether an individual will
become involved in a relationship, or if a company believes it should
attempt to regulate relationships.
To begin, an individual consequence would be risks to one’s
career. For example, if it is a manager and lower level employee
involved in the relationship, (1) other employees may lose respect for
the manager because they believe his/her judgment will be biased and
(2) the lower-level member may not know whether he/she receives the
promotion due to his/her actual knowledge and experience, or
favoritism. Another risk for the individuals involved is consequences
for their home and family. If one of the persons is involved in a
marriage or long-term relationship at home, the office relationship will
obviously lead to several unfavorable consequences. Finally, the last
major risk to individuals is the risk of violating office norms. When
groups of people are spending many long hours together, and working
in close conditions, there are usually strict, unspoken guidelines set
about crossing the line between personal and coworker relationships.
Even attempting to keep the relationship a secret will probably fail since other employees may notice a change in behavior and become aware of
the relationship taking place (Paul).
The next category of risks pertains to organizational, or
company risks. As previously stated, there is a fine line between
employee privacy and regulation, but severe consequences may create
an opportunity for employers to dance on that line, in order to diminish
unfavorable penalties for the company. These risks include role
conflict, favoritism, reduced productivity, intra-group conflict, and,
more seriously, sexual harassment (Paul).
Role conflict exists when there are different behaviors
portrayed in the same situation. This type of conflict may result in
favoritism, complaints to management, and inequitable allocation of
resources (Paul). This could potentially be devastating for the company
as it could disrupt everyday operations and have a negative impact on
coworker loyalty, group cooperation, communication and company
confidence, as well as confidence in the companies and their managers.
The most serious and effect of employee romances in the
workplace is sexual harassment. In legal terms, this is defined as any
unwelcome sexual conduct on the job that creates an intimidating,
hostile or offensive working environment. There are two legal forms of
sexual harassment. The first is called quid pro quo harassment, which
includes offensive sexual innuendos, physical contact, sexual remarks
and inquiries, and demands for sexual favors to keep a job or obtain a
promotion. The second form of sexual harassment, hostile work
environment harassment, is sexually offensive conduct that permeates
the workplace making it a difficult or unpleasant work environment.
Both of these are protected under Title VII of the Civil Rights Act as sex
discrimination. In order for an instance to be considered sexual
harassment and protected under those laws, certain standards must be
met. For example, the conduct must have been unwelcome, it must
have been severe enough to create a hostile work environment, and it
must be based on gender or affected a term, condition or privilege of
employment (Paul).
Believe it or not, an employer can be held liable for any form of
sexual harassment that takes place between his/her employees and,
most especially, an employee and a customer. This is a vast issue when
it comes to the legality of sexual harassment and workplace romances.
It depends on whether the employer had actual or constructive
knowledge of the problem and took no prompt or adequate remedial
action. The Equal Employment Opportunity Commission (EEOC)
generally creates the rules and liabilities that pertain to this issue. They
may require that a policy be written for the company that involves the
legal ramifications of sexual harassment in the workplace. Such policies
should “identify what constitutes sexual harassment, be communicated
to every employee, require immediate investigation of complaints by an
impartial investigator, specify taking vigorous disciplinary measures
against the perpetrator and training for managers and workers” (Paul).
In addition to those consequences, employers are beginning to
regulate workplace romances because they are worried about trade
secrets (protecting sensitive, internal information), and they want to
avoid lawsuits. Many companies now include nondisclosure policies
and conflict-of-interest dating rules are written to protect trade secrets.
They do not want one of their employees in a romance with another employee from a competing company. Naturally, companies would
like to avoid lawsuits to limit costs, negative public news, and
unfavorable court actions.
Employee Romance and the Law
While most companies are worried about protecting
themselves from negative internal as well as external issues, employees
are more focused on privacy and fair treatment. There are no laws that
specifically pertain to employee romances, but many other laws do
cross that line and provide some guidelines for the matter. There are
many instances where courts disagree as to who is in the wrong, and
more times than not employers and employees are in conflict with each
other. There are two types of laws that help guide employee romance
issues: public sector laws and private sector laws.
Public sector laws apply specifically to defining the legality of
employee romances in pubic sector jobs. These laws are for cases that
are based on an employee’s constitutional right to privacy from
governmental interference (Libbin). The Fourth Amendment protects
citizens against unreasonable search and seizure. This can be helpful in
the case of the employer who went to unreasonable searching standards
to find out information about an employee’s relationship. For this
instance, the reasonableness of a search is defined and determined by
“balancing the extent of the invasion and the extent to which the
employee should expect privacy in an area against the employer’s
interest in the security of the workforce and other job related concerns.”
In addition to this, the Fifth and Fourteenth Amendments also protect
an employee’s right to privacy. It states that:
* The state may not restrict one’s right to privacy and free
association, including workplace relationships, without
justification. For a restriction to be allowed, the state must also
show that the restriction is justified by compelling state
interest. The restriction must also be the least intrusive
alternative available (Paul).
Throughout history, it seems the courts simply rule on a case-
by-case basis when it comes to workplace romances. Although there
are no strong laws pertaining to this issue, it does appear that they
heavily weight the effect it had on job performance.
Along with the constitutional laws, there is a federal law that
also applies to the matter at hand. The Privacy Act of 1974 restricted the
government from intruding in the personal lives of federal employees.
It basically “regulated the release of personal information about federal
employees by federal agencies.” In addition to this, Congress passed
the federal wire tapping statute and Title II of the Omnibus and Crime
Control and Safe Streets Act of 1986 (Libbin). This was a huge step in
employee privacy because it made it illegal for employers to monitor
employees’ telephone calls and other communications without a court
order.
Private sector laws vary significantly from those of the public
sector. Once again, there are generally no laws that apply specifically to
employee romance, but private sector employers are not bound by constitutional constraints, either. In order to fix this, the state
legislatures have addressed employee romance policies in four ways:
Enacted legislation that mirrored federal law regarding the
compilation and dissemination of information.
State constitutions now recognize a constitutional right to privacy
Protected employees in certain areas of employment, such as
personal records or the use of credit information.
Left private sector employees to fend for themselves while the
federal laws and the Constitution afford protection to federal
employees and those subject to state action.
In addition to these state laws, many courts have enacted
common law to regulate and provide a guideline for charging an
employer with intrusion into seclusion. In order for the employer to be
found guilty, the employee must:
Show the employer intentionally intruded into a private area.
Explain that he was entitled to privacy in that area.
Illustrate the intrusion would be objectionable to a person of
reasonable sensitivity.
Prove the intrusion may occur in any number of ways.
Confirm the employer verbally requested information as a
condition of employment.
Be required to provide information in other ways, such as through
polygraphs, drug tests, or psychological tests.
Request an annual medical examination.
Show the employer asked others personal information about his
employees.
Demonstrate the employer went into private places belonging to
him.
If the employer is found guilty of any of these, it may
constitute wrongful invasion of privacy if it would be offensive to a
reasonably sensitive person. The employer can counteract these if he
can show reasonable business-related justification for the invasion. For
example, employers can regulate some employee off-duty activities if
they are affecting job performance (Paul).
Conclusion: An Uncomfortable Area for Employers
The first thought some may have to the unanswered question
of employee romance is to ban relationships in the workplace
altogether. Legally, this could never be possible. It is unrealistic and, according to Business Insurance, “about 40% of employees report being
involved in a workplace romance at some point in their careers,
according to the 2006 Workplace Romance survey by the Alexandria,
Va.-based Society for Human Resource Management and the New
York-based Wall Street Journal's CareerJounal.com web site.” In
addition, according to a SHRM survey, “more than 70% of
organizations reported having neither written nor verbal policies that
address workplace romance. Of those companies that did have an office
romance policy, only 9% prohibited dating.”
Employee romances will continue to be debated for years to
come. There is no one set standard on the issue, and, as you can now see, many companies take completely different stances on the problem.
The research survey gives guidelines to employers and employees on
this controversial issue. Please read through each carefully; you never
know when they may pertain to you.
Works Cited
De La Vina, Mark. Love & Company: Workplace romances happen, but
first consider the pitfalls. San Jose Mercury News. California:
October 10, 2007.
Freeman, Edward H. Information Systems Security. New York: May/Jun
2007. Vol. 16, Iss. 3; 182-185.
Greenwald, Judy. Business Insurance. Chicago: May 21, 2007. Vol. 41,
Iss. 21; 1-2.
Libben, Anne E., Stevens, J. Christopher. The Right to Privacy at the
Workplace, Part 4: Employee Personal Relationships. New
York: October 1988. Vol. 65, Iss. 10, 56-60.
Personnel Today. Sutton: Feb 13, 2007. 18.
Paul, Robert J.,Townsend, James B. Managing the workplace romance:
Protecting employee and employer rights. Review of Business.
Jamaica: Winter 1998. Vol. 19, Iss. 2, 25-30.
Markels, Alex. Management: Employers’ dilemma: Whether to regulate
romance. Wall street Journal (Eastern Edition). New York,
NY: February 14, 1995, B1.