A narrow anti-fraternizing policy helps prevent harassment claims
Published 02/23/99

Sexual harassment in the workplace is extremely costly to both the employer and the abused employee. It is necessary for an employer to have a sexual harassment policy and to enforce it uniformly including promptly investigating each complaint of harassment and taking corrective action when necessary. Educating employees about the laws regarding sexual harassment in the workplace and what constitutes sexual harassment is critical to deterring such conduct.

Another means to avoid real and fictitious claims of sexual harassment is the passing of an anti-fraternization policy. Such a policy would make it clear that romantic relations are not tolerated between fellow workers. This may decrease incidents of employees attempting to convince a co-employee to go out with him or her, and may limit situations when consensual romantic relationships ends and the jilted employee claims sexual harassment as a way to get back at their former romantic partner. Such a broad anti-fraternization policy to all employees may result in the Court finding that the implementation of that policy invades the privacy rights of the employees. If such an issue is presented to the Court, it may weigh what are the legitimate business interests of the employer against the employee=s privacy rights outside the work place.

Given these issues, some employers have forged an alternative to a broad anti-fraternization policy which prohibits romantic relationships between two employees who are in a supervisor/subordinate role, including any situation in which one of those co-employees has direct input to the other=s job. By way of example, if a supervisor in a manufacturing facility decides whether employees receive overtime, a romantic relationship between that supervisor and subordinate would be prohibited under the employer=s anti-fraternization policy. This helps prevent claims that one subordinate is getting preferential treatment from the supervisor as a result of their romantic relationship.

If an employer considers implementing such a supervisor/subordinate anti-fraternization policy, it should implement enforcing the policy uniformly and seek legal counsel in its drafting of the policy to minimize the impact on employee=s privacy rights while protecting legitimate business interests. If the policy is, in fact, an attempt by an employer to impose their morality outside the workforce on their employees such as prohibiting employees living together unless married, it is much more likely a Court, and later a jury, in a wrongful termination case will find such a policy to be a violation of the employee=s privacy rights. On the practical side, such a policy would probably cause a furor and substantially decrease employee morale and loyalty, to the benefit of no one.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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