HR Question:

We just learned that two of our employees are in a romantic relationship. We don’t currently utilize consensual relationship agreements. Although they’re not in a supervisor/subordinate relationship, should we still be concerned? What should we do?

HR Answer:

Although romantic relationships in the workplace are quite common, you do have reasons for concern about employees dating one another.

With the evolution of the #MeToo era, many employers found themselves re-examining (or creating) policies to mitigate the threat of sexual harassment claims. Inter-workplace romances can be difficult for a myriad of reasons; one of them is understanding whether a relationship is consensual.

To address this concern, some organizations choose to put in place a policy requiring employees to disclose workplace romantic relationships. It can be beneficial to include a Consensual Relationship Agreement as part of this policy. So, how do you get started?

Meet with the Employees Individually

The best approach when you learn of a workplace romantic relationship is to first meet with both employees independently. You’ll want to determine whether there is any possibility that the agreement is not consensual. In particular, you should:

• Make sure that the employees understand the company’s sexual harassment policy;
• Emphasize that employees will not be retaliated against for reporting sexual harassment;
• Explain the procedure for reporting sexual harassment; and
• Document the employee’s file with a summary of the interview.

Assuming that the relationship is indeed consensual, a great tool to help protect your organization and your employees is to require the employees to enter a “Consensual Relationship Agreement.” These kinds of agreements can vary by industry and size of the organization. According to the Society for Human Resource Management (SHRM), “Those employed at midsize and large organizations were more likely to say they were required to report such romances (27 percent at both) than those at small employers (16 percent).”

Confirm the Relationship is Consensual and Voluntary

A Consensual Relationship Agreement, signed by both employees and management, clarifies the expectation that the employees will not allow the relationship to interfere with or impact the work environment. It also confirms and documents that the relationship is consensual and voluntary.  As a best practice, we encourage employers to attach a copy of the company’s sexual harassment policy to the agreement. This can support a mutual understanding that the employee is aware of the sexual harassment policy and had the opportunity to report any inappropriate conduct by the other employee.

If done properly, a Consensual Relationship Agreement can make it more difficult for an employee to claim that the relationship was “unwelcome.” In addition, if the relationship should go awry, the agreement offers the potential to create a question about why the employee did not seek to stop the harassment by reporting it to management.

Consensual Relationship Agreements can be an important tool in managing the risk of sexual harassment claims. However, they must be created and administered with care. If you have any doubt about the agreement’s ability to protect your organization or your employees, we recommend consulting your attorney.

Unsure of what to include in Consensual Relationship Agreements? Don’t worry, that’s what we’re here for. Clark Schaefer Strategic HR can help you develop or amend your HR policies, including consensual relationship agreements, employee handbook policies, and more. Learn how we can help you promote a positive, productive, and safe work environment on our Employee Relations page.