“People who get involved in office romances think that something unique has happened to them,” writes Marilyn Moats Kennedy in Office Politics: Seizing Power, Wielding Clout. “What they don’t get is that they were selected by the same management to work in the same culture and political environment. Of course they get along, they’re practically clones!”

Kennedy says what’s more surprising is that more people don’t get involved.

But what action will your boss take when it’s discovered two employees are dating? Some will look the other way, ignoring the romantic bond. Others will institute no-dating policies—even though “people will date anyway and just not tell anyone,” says Connie Cornell, an attorney in the Austin, Texas office of Jenkens & Gilchrist law firm.

More recently, employers are taking a different approach, addressing office romance head on. They realize the risk for employer liability associated with workplace romances—specifically between a supervisor and subordinate—and they want to be prepared.

“Employers can face a serious problem if a couple meets, dates and the relationship doesn’t end on a good note,” Cornell explains. “For example, Sara tells Bill it’s over. Bill sends Sara an apology note along with a silk gown from Victoria’s Secret. If Sara reports to Bill, and if Bill’s affections are no longer welcomed, Bill’s conduct could be considered sexual harassment. And if Bill threatens Sara’s job [security], that’s retaliation.” With both possibilities, the courts will hold the employer liable.

Instead of instituting a no-dating policy, employers are beginning to draft consensual relationship agreements, often called “kiss and tell” policies, which mainly deal with supervisor/subordinate romantic involvements. Such policies acknowledge that workplace romance will occur, says Christine Amalfe, attorney with Gibbons, Del Deo, Dolan, Griffinger & Vecchione. “These policies specifically state that if a supervisor and subordinate are indeed having a romantic relationship, it is the responsibility of the senior person to disclose the relationship to human resources or be in violation of the policy.” Through the policy, the employer typically reserves the right to transfer one or both of the individuals if it turns out that they are in the same chain of command, she explains.

The New Jersey Attorney General’s office instituted a similar policy requiring supervisors to “promptly inform their immediate bosses of any intimate relationship, so the department can consider reassigning one of the participants.” The policy was created after the state office was required to pay $350,000 in damages to a former deputy attorney general who alleged sexual harassment after being involved in a romantic relationship with a supervisor.

“The implementation of a ‘kiss and tell’ policy will not insulate companies from lawsuits,” explains Amalfe. “But it will place them in a more defensible position.”

Beyond protecting themselves from sexual harassment lawsuits, there are several other reasons why employers are taking the leap to implement kiss and tell policies. These include protection against claims of retaliation once the relationship ends, preventing a decrease in employee morale and productivity and prevention of unprofessional behavior by employees.

But Is This Legal?

Right now you’re probably thinking that kiss and tell is an invasion of privacy. But, says Cornell, employers don’t have a choice in asking employees about their private lives. “Employers don’t have to get real personal; they just need to ensure that the couple understands the employers’ situation.”

So what can you expect if you find yourself in such a situation? What if you are Bill or Sue in the above hypothetical, yet very real, example? Here’s how an employer might communicate the company’s position regarding office romances:

• Have a meeting with the couple to explain the company’s anti-harassment policy.
• Ensure that each individual does not perceive a violation with the anti-harassment policy.
• Before the meeting adjourns, ask the two individuals to confirm—either by signing a written consensual relationship agreement or through a verbal conversation, which is then filed—that:
  
  
  • There’s a mutual desire to pursue a social relationship.
  • The conduct is welcome.
  • There is an understanding and willingness to abide by the anti-harassment policy.
  • There is a commitment to immediately report any violation of the anti-harassment policy.
  • There will be no public displays of affection or favoritism.
  • There is no obligation to continue the relationship.

It might seem strange to have to go through all of this hassle for what could turn out to be a meaningless relationship, but to many employers, it would seem strange not to.