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ИСТОЧНИК: ЭЛЕКТРОННЫЙ ЖУРНАЛ PERSONNEL POLICY, INC

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Раздел: HR MATTERS NEWSLETTERS

1. Dating and Family Relationships in the Workplace: Should You Have a Policy? (8/11)

Conflicts can and do occur when employees date each other or work with family members.  But, policies that ban these relationships can be difficult to enforce and may result in legal claims. So, your best bet is to focus on the underlying performance issues, not the social or family ties.

Are you concerned about the potential conflicts that can occur when employees date or marry, or when family members work together?  In the past, employers concerned about these tensions often imposed rules prohibiting the hiring or retention of an employee’s relatives (referred to as nepotism policies) or dating among coworkers (referred to as anti-fraternization policies).  Some employers even viewed anti-fraternization policies as a way to reduce the sexual harassment complaints that can arise when consensual romantic relationships sour.      However, these policies are controversial, difficult to enforce, and can generate potential legal claims.  Many employers, therefore, prefer to permit the hiring of relatives and allow employee dating, except when clear-cut conflicts or performance problems appear likely. Legal, Practical Problems Outweigh Perceived Benefits Certainly, rules prohibiting nepotism and fraternization may prevent some of the more obvious difficulties that can result from close personal relationships between coworkers.  Common problems include favoritism, personal squabbles impacting work time, and problems scheduling vacations and shift work for married employees.  These restrictive rules also may help reduce the chances of employees improperly sharing confidential information about your business.  Even so, you must weigh the possible benefits of these policies against the legal and practical difficulties of enforcing them.      Policies prohibiting employment of spouses and relatives and coworker dating are controversial since they attempt to regulate an employee’s personal relationships.  Although courts generally uphold the employer’s right to institute them as long as they are implemented consistently, state laws prohibiting marital status discrimination can restrict their application.  Courts that have upheld these rules include Ellis v. United Parcel Service, Inc., 523 F.3d 823 (7th Cir. 2008), where the court questioned the wisdom of the UPS anti-nepotism policy, which forbade managers from dating hourly employees, but it nonetheless found no violation of Title VII when a black manager was terminated after marrying a white hourly employee.  The court determined that there was no evidence that UPS applied the policy disproportionately against employees who were in interracial relationships.  Similarly, in Adamson v. Multi Cmty. Diversified Servs., 514 F.3d 1136 (10th Cir. 2008), the court found no discriminatory pattern in the employer’s application of its nepotism policy that limits employment of relatives if they will be supervised by a close relative when it fired the CEO husband and his wife and daughter, whom he hired and directly supervised.  Furthermore the court unequivocally stated that “familial status” is not protected by Title VII.        But, these policies also can subject you to sex discrimination claims, under the theory that the rule has a disparate impact on females, particularly if they are the ones normally terminated because of the relationship. For example, in EEOC v. Rath Packing Co., 787 F.2d 318 (8th Cir.) cert. denied, 479 U.S. 910 (1986), the court determined that the employer failed to establish a business necessity for the no-spouse rule that disproportionately excluded female applicants since it could not show that the problems it experienced in employing spouses (such as poor worker morale) had any demonstrable effect on safety or efficiency.      Further, a number of states specifically prohibit discrimination on the basis of marital status under their fair employment practice laws.  Whether a no-spouse rule violates a state marital status discrimination law depends on the wording of the statute and court interpretations of the state law.  For example, some states (including Colorado and Wisconsin) only allow employers to discharge or refuse to hire a spouse if one spouse would directly supervise, audit, or receive money handled by the other spouse.  Other states (including Kansas and Hawaii) specifically prohibit an employer from terminating or refusing to hire an employee as a result of marriage to another employee.       Besides the legal pitfalls, you also should consider several practical problems associated with these policies.  For example, you will find it very difficult to enforce any rules that apply to off-duty conduct. In addition, employees often resent the rules as an invasion of their privacy.      Furthermore, these rules can exclude precious talent.  Organizations in remote areas or communities dominated by a single employer often struggle to attract qualified workers.  These employers cannot afford to limit the available labor pool with prohibitions that exclude the employment of spouses, dating couples, or related individuals.  Perhaps worse yet, you stand to lose a significant investment in recruiting, hiring, and training when an employee who meets and marries a coworker is later forced to resign under a nepotism rule.      And, as a final practical consideration, recent surveys show that dating in the workplace is common.  A 2010 survey conducted by Monster Worldwide Inc. for Spherion indicated that 36% of surveyed adults had engaged in a romantic relationship in the workplace, and 12% had married their coworkers.  So if you have not had to confront the issue yet, it likely is just a matter of time before you do.  Focus on the Conflicts and Not the Relationship What, then, can you do to address the problems these policies are meant to prevent but still avoid the practical and legal pitfalls often associated with these relationships?  Instead of refusing to hire or retain an employee’s relatives or prohibiting employee dating, focus on the specific conduct that disrupts your workplace, like favoritism, irregular attendance (extended lunches or shortened workdays), and inappropriate behavior.  You probably already address most of these matters with your existing policies and work rules on issues like breaks, attendance, and workplace behavior.  In addition, to further minimize the potential for problems, consider adopting limited restrictions prohibiting supervisory relationships between related or dating employees and any actual conflicts of interest, or the appearance of conflicts, that may result from these relationships.  (You will find model policy language addressing these types of conflicts in HIRING, Chapter 202, Comments (7) and (8).)      As a final note, you should shift your focus from your employees’ personal relationships to actual objectionable workplace behavior.  Then, you can address legitimate performance problems without acting like an unreasonable and intrusive “Big Brother.”