Denver Bar Association
December 2004
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Lookin’ for Love in all the Wrong Places

by Heather M. Davis, Laura J. Hazen

The Intra-Office Dating Dilemma

"They swarmed around her like bees to honey." "Everyone knew, but it didn’t really impact the office environment." "It is none of my business." "That’s just Jim. It’s how he acts with his assistants."

We’ve all probably heard comments like these from our employer clients more times than we would care to recall. Courts and human resource departments alike have wrestled with intra-office dating for years in the context of sexual harassment suits and general office management. Because we advise our employer-clients to tread lightly around this topic, should lawyers heed their own warnings when it comes to dating in the office? There is room for courts to broaden an occasionally-acknowledged "marital status" protected class if employers allow two employees to be married but prohibit intra-office dating. There is also the possibility of liability by the supervisor or managing partner when the love fades. Should we, as lawyers, avoid the pitfalls of office romance despite the fact that billable hours and increased time pressures keep us from being social outside the office?

Although we’ve all heard stories about couples who met in the office and are living happily ever after, consider the following scenarios:

Kenneth, an associate in ABC law firm, begins a casual relationship with Nancy, another associate in ABC. Kenneth is able to bring in some additional business to ABC and is welcomed as a partner at the end of the year. Now, Kenneth has become Nancy’s superior, and has input into Nancy’s future with ABC.

If the two lawyers were not successful in secretly keeping the affair to themselves, what ramifications exist when Nancy does not make partner? What happens if she does? What happens if Nancy makes partner first?

Even without Kenneth’s move up the ladder, how will attorneys and staff react when they witness a flirtatious remark or gain insight into the relationship?

What happens if Nancy decides that she is no longer interested in a relationship with Kenneth, but fears she will not continue to receive the "better cases" or will not be invited to social gatherings with the partners (a prerequisite to making partner in many instances) if she discontinues the relationship?

We do not suggest that intra-office dating necessarily leads to a sexual harassment claim; however it does provide a fertile ground for such claims. Although Colorado has not, a few states have expressly added a prohibition against sexual harassment to their Rules of Professional Conduct. Even absent a formal ethical obligation to refrain from sexual harassment, Colorado attorneys are wise to avoid placing themselves in harm’s way. Should lawyers follow their own advice and refrain from engaging in office romance?

Recent cases make it clear that there is no precise way to predict what may happen when office romance doesn’t blossom. If the two involved are supervisor/subordinate, there is no way to predict that the subordinate won’t later feel obligated to continue the relationship in order to keep his/her job or to climb the ladder. Although these issues may be easy to disregard as mere "feelings," these feelings may later become the basis of an adverse employment action or a hostile work environment claim and cost the firm a large settlement or verdict. Short of that, soured office romance could damage a formerly collegial office environment beyond its repair or cause a formerly valued attorney to leave the firm.

Before taking the risk, consider the following:

Check to see if there is a dating policy in place. Courts, while reluctant to monitor consensual adult relationships, are not completely unwilling to chastise employers who let employee behavior go unchecked. "No dating" policies, whether implied or express, can provide a basis for discipline against employees who date co-workers.

Remember that what is consensual today may not always remain so. Just because two employees are happily in love in January does not suggest, upon a souring of their relationship, that the situation will remain amicable. If you are a partner and choose to allow two office sweethearts to date, prepare yourself for a potential suit later if things take a turn for the worst. If you are adamant about allowing the two employees to continue to date, consider securing sworn statements from both parties concerning their voluntary relationship. Even then, be mindful that such releases could prove unenforceable later on, should litigation ensue.

Consider the easiest and most risk-free of all alternatives: Ask your co-worker if he/she has any friends who are single.

Heather Davis is an attorney at Kutak Rock, and Laura Hazen is with Ireland Stapleton Pryor Pascoe.

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