Q: I work as a bookkeeper for a small construction firm. I’ve been asked to sign an anti-fraternization policy that forbids romantic relationships among managers, employees and coworkers. This policy is new and I believe is aimed at me and the man I’m dating. He works in the field and we don’t overlap during the work day in any significant way. I don’t supervise him, and he doesn’t supervise me. I’d like to keep dating him.
I’ve been given the chance to show it to an attorney first. Do I need to sign it? Is it even legal?
A: Elizabeth Hodes, employment attorney and partner at Davis Wright Tremaine, describes “anti-fraternization policies as a common and generally lawful tool for setting ground rules and standards for relationships in the workplace.”
Employers use these policies to outline how they will address consenting, romantic relationships between managers, employees and coworkers and to protect their company from potential problems caused by distraction, romantic conflicts and sexual harassment claims. The terms of these policies may vary widely from one business to another, but many prohibit any public displays of affection on company time and in the workplace, diminish the reality or perception of supervisory favoritism and help maintain workplace professionalism.
Policies that ban coworkers from fraternizing may face legal challenges. Some believe they may violate your right to privacy and freedom of off-the-job association. As a non-supervisory employee, you generally have the right to make intimate, off-duty personal decisions without employer intrusion, or interference. You have the right to pursue a consensual relationship with whomever you choose and to keep the fact of that relationship private from others.
In 2003, the United States Supreme Court (Lawrence, 539 U.S. 558) held that individual decisions “concerning the intimacies of their physical relationship” constitute “a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” The Court also noted that “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (Lawrence, 539, U.S. 588).
Courts, however, have held that employees engaged in relationships with their supervisors or subordinates have a reduced expectation of privacy because they present issues of potential sexual harassment and may create the appearance of favoritism (Barbee, at 113 Cal. App. 4th at 533).
Also, Hodes notes, “while constitutional protections apply in the public sector, private employers have more leeway. Privacy torts still protect employees in the private sector, but they are not likely to be implicated by an anti-fraternization policy if it is properly focused on workplace behaviors and impacts.”
Next, if your employer tries to justify a fraternization policy by claiming that it needs to prevent sexual harassment between coworkers, it may face an uphill battle. After all, it can instead enforce a sexual harassment policy and take immediate and appropriate action when it learns of inappropriate conduct.
Policies that ban all fraternization without specifying romantic relationships may also violate the National Labor Relations Act (NLRA) which protects the right of employees to meet and organize for mutual support. In one landmark case, Guardsmark LLC, a nationwide company that provided security guards banned its employees from fraternizing on or off-duty, dating or becoming overly friendly with coworkers or the company’s clients.
A union challenged this policy under the NLRA. The National Labor Relations Board sided with Guardsmark, noting that Guardsmark employees understood the non-fraternization policy was intended to prohibit interpersonal relationships that could compromise a security guard’s judgment and not protected labor activity. The District of Columbia Court of Appeals disagreed. Since the Guardsmark non-fraternization rule explicitly barred employees from fraternizing with each other, and Guardsmark employees could not engage in protected activity without fraternizing with each other, the Appeals Court ruled that it violated the NLRA.
According to Hodes, “the National Labor Relations Board (NLRB) disapproves the scope of broadly-worded policies that may impact concerted activity among employees, but the NLRB is supposed to focus its concerns on concerted activity that relates to the terms of conditions of employment. If a non-fraternization policy is scoped and worded properly, it won’t limit concerted activity protected by the National Labor Relations Act (NLRA).”
As an example, if an employer wants to make sure coworker dating relationships don’t cause distraction at work, their fraternization policy needs to specifically address the issue of distraction and not try to ban coworker behavior that takes place outside of working hours and the workplace.
Finally, what leads you to claim your employer has aimed this policy at you or your dating partner? Have you provided proprietary company financial information to him? Although the NLRA allows employees to discuss pay, if you were indiscrete with other information, your employer could potentially discipline you for a lack of judgement. Whatever the situation, you may want to avail yourself of that attorney.
© Dr. Lynne Curry is author of “Beating the Workplace Bully” and “Solutions” as well as Regional Director of Training and Business Consulting for The Growth Company, an Avitus Group Company. Follow her on Twitter @lynnecury10 or at www.bullywhisperer.com.