Like almost everyone I know, I love the ability to binge-watch television series these days. In fact, it is a rare occurrence that I ever watch any show at the time it actually airs. (This Is Us is a notable exception for me.) Instead, I enjoy delving into these characters’ lives several hours at a time. One such show that I am currently gorging on is Suits, which is in its 7th season and airs on the USA Netw
ork. A fellow attorney recommended this show to me, but I was reluctant at first, as I often shy away from legal programs—I have practiced law for almost 20 years and television should be an escape for me, right?!
For those who have yet to watch Suits, the premise is as follows: Harvey Specter is a Harvard-educated attorney at a top Manhattan corporate law firm where every case is high-stakes. He hires a brilliant associate, Mike Ross, who had falsified his background to state that he has graduated from Harvard Law School. The truth is, Mike never even graduated from college, much less law school. However, Mike possesses such a talented legal mind that Harvey keeps him on at the firm anyway. (This “falsification of workplace documents” issue involving Mike could certainly be a topic of a future blog….) While working at the firm, Mike falls for a co-worker, Rachel Zane, who is a paralegal. In her role as a paralegal, Rachel “reports” to Mike on many of the cases they handle. Mike and Rachel begin a relationship, secretly at first. Then, other co-workers at various levels learn about the relationship. While this all makes for great television, workplace romances can create headaches when they pop up in our real workplaces.
So, what can we learn from Mike and Rachel’s steamy relationship on Suits? Workplace romances, especially between persons at different levels in a company, can lead to HR nightmares. Notably, some polls reflect that more than 80% of employees have been involved in, or know about co-workers who have been involved in, workplace dating. So, what’s the issue? The biggest fear (and it is a legitimate one) is that a sexual harassment lawsuit will arise at some point in the relationship cycle, usually after one of the employees ends it. Of course, a valid sexual harassment claim requires the conduct to be “unwelcome.” Accordingly, if the employer can show that the relationship is truly consensual, no harassment claim will succeed. The difficulty, though, is proving that the relationship was truly consensual. That is even trickier when, as is the case with Mike and Rachel, one of the employees is a supervisor and the other is a subordinate. If the relationship goes sour for any reason, the subordinate employee may claim that it was never really consensual to begin with. Further, the employer may also be on the hook for a retaliation claim if the supervisor takes any adverse employment action against the subordinate later.
What can employers do to avoid this drama?
1. Consider adopting an anti-fraternization/“no dating” policy. Some employers fight Cupid’s arrow at work by having a policy in place that prohibits workplace romances, especially in a chain of command situation. These policies are tricky to enforce, though, and some companies simply do not want to invade the private lives of their employees any more than they absolutely have to. Of course, employers can also rely on their sexual harassment policies for assistance: If an employee brings information to HR that a workplace relationship has ended and the employee needs help navigating the fall-out with the co-worker/supervisor, then HR should rely on the harassment policy and remind all involved of the company’s rules and reporting procedures.
2. Consider utilizing “Love Contracts.” Such agreements, executed by the employees involved in the relationship as well as management, confirm that the relationship is consensual, and that the parties agree that the relationship will not negatively impact their performance or the workplace in any manner. Companies often attach their harassment policy to the agreement as an addendum, which makes it difficult for an employee to later claim that he or she did not know how to report conduct that allegedly violates the harassment policy.
Keep in mind, though, that the most important tool (which is already in your toolbox) is the company’s harassment policy. Possessing an effective harassment policy and procedure—that is sufficiently communicated to employees through training—often helps to avoid costly litigation when a workplace romance dissolves. For now, I will just keep holding my breath that Mike and Rachel can work through their difficulties and stay together (at least through Season 3, which I am currently watching).