Courting Disaster

hat are you, the love police?" James sputtered. "Jane and I put in 60-hour weeks, and we're on call the rest of the time. What happened to the right of privacy? Where did you think either of us would meet somebody? We're always here!"

The hospital doesn't pay me enough to do this, I thought. As personnel director, I'd signed on to do training, oversee benefits and administer labor contracts--not talk to staff members about potential violations of our new anti-fraternization policy. And James and Jane (not their real names) clearly weren't interested in having their social lives investigated, either.

"Sex is irrational," says a former deputy commissioner for New York City's Department of Social Services. "When your emotions rip and your hormones pump, the last thing that matters is personnel policy."

High-profile romances, including those in the Oval Office, have focused national attention on issues of sex and privacy in the workplace. President Clinton first responded to allegations of an affair with Monica Lewinsky with indignant denials. Even after he admitted to a relationship that was "not appropriate" and "wrong," Clinton insisted that the whole affair was a private matter between him and his family. "It's nobody's business but ours," he said.

When does a federal employee's private romance become his or her employer's business? An individual's privacy is protected by various laws and regulations, but as agencies, like private companies, find themselves paying huge settlements for sexual harassment and sex discrimination claims (some as a direct result of office romances gone sour), they believe they have a right to establish rules and regulations about office relationships. But experience is showing that such rules are all but impossible to enforce.

Romance and Harassment

Office romance is not sexual harassment. Romance is about attraction, about wanted advances. Sexual harassment typically involves unwanted advances; it's about power and control. But the line between the two can get blurry, and a manager who engages in an office romance--particularly with a subordinate--can find himself or herself charged with sex discrimination even if no allegations of harassment are raised.

Federal laws (notably Title VII of the Civil Rights Act of 1964), along with statutes in most states, prohibit sex discrimination. The Equal Employment Opportunity Commission, created to enforce the provisions of Title VII, issued specific guidelines addressing sexual harassment in 1980.

Under Title VII, charges of sexual harassment may be based on either a quid pro quo situation, when an employer bases conditions of employment, benefits or promotion on exchange for sexual favors; or a hostile environment, where sexual harassment creates an offensive atmosphere even though it doesn't affect an employee's compensation or advancement. The EEOC guidelines speak to unwanted sexual advances or unwanted conduct that affects the ability of people to get their jobs done. (Last March, the Supreme Court ruled that same-sex harassment is also actionable under Title VII.)

Confusion arises when office romance shifts the balance of power in ways that look like sexual harassment. That's why dating between supervisors and subordinates is supervisory suicide. If unequal power relationships go sour, the subordinate could claim the affair was not consensual and file a sex harassment charge. If the subordinate is later discharged, he or she might claim retaliation. If retaliation for filing a sexual harassment complaint is substantiated, under federal law the claimant is entitled to triple damages.

Recently the Eighth U.S. Circuit Court of Appeals held the Kansas City, Mo., Board of Police Commissioners liable for retaliatory acts that a police chief took against a female officer who had filed a sexual harassment complaint. In 1994 the officer alleged harassment by a male officer whom she at one time had dated. The accused officer retired, and the female officer suddenly began experiencing investigations, transfers and suspensions instigated by the police chief. Ultimately she sued the Board of Police Commissioners. While she initially had accused a co-worker of sexual harassment, the retaliation was instituted by a superior officer and she won her case on a higher-liability standard.

Even if a manager is not accused of harassment, a relationship with a subordinate is fraught with potential for danger, because it can embroil a manager and the other person in allegations of favoritism.

In 1993, a confidential investigator with the New York City Department of Health married her supervisor and was transferred after her co-workers complained that he granted her favored treatment. She sued the Health Department, charging discrimination "due to marital status." The New York Supreme Court dismissed her case, however, ruling that "it was not unreasonable for the Department of Health management to recognize the lack of desirability of having an employee being supervised by her spouse and to take steps to rectify such a situation."

The Problem With Policies

There is nothing in federal law that prevents an agency from prohibiting supervisors from dating the people who report to them. But according to the Office of Personnel Management, there is no governmentwide policy limiting the rights of employees to date each other. Each agency is responsible for handling its own office romance issues.

No agency has had more difficulty in implementing such policies than the Defense Department, which has struggled with several high-profile cases involving sexual relationships of its personnel. In July, after a yearlong Pentagon review, Defense Secretary William Cohen released a new policy designed to standardize all of the military services' guidelines about relationships up and down the chain of command.

Cohen said the new policy would prohibit "dating, shared living accommodations, engaging in intimate or sexual relations, business enterprises, commercial solicitations, gambling and borrowing between officer and enlisted, regardless of their service." The effect of the policy was to order the Army, which for the past two decades has allowed personal relationships between officers and enlisted personnel as long as they did not compromise the chain of command, to bring its rules in line with those of the other services.

Army officials, who noted that there are 1,000 marriages between officers and enlisted personnel among the 480,000 people on active duty in the service, said making the transition to the new policy would be difficult. "We have a 20-year culture we're going to have to change," one officer told The Baltimore Sun. "We don't know how we're going to implement this. If we have 1,000 married couples, at least that many people out there are dating."

Faced with similar concerns, many private-sector organizations have avoided establishing specific policies on office relationships. But others, including General Motors, IBM, and AT&T, have enacted policies strictly limiting employee romances.

Enforcing such policies is proving to be a difficult, sometimes embarrassing process. Recently a senior executive at Staples, a corporation that had instituted a no-dating policy, was forced to resign when it was revealed that he was having a consensual affair with his secretary. Staples lost a valued officer, and the manager forfeited his lucrative job for violating company rules, even though he committed no illegal act.

Last March, a San Francisco company asked its legal counsel to develop a "consensual relationship agreement" for a senior manager and his female assistant. They were asked to document that their affair was voluntary on both sides, that they had read their company's sexual harassment policy, and that their situation wouldn't affect either's job progress or their working relationship.

In 1995 the New York State Department of Labor challenged a Wal-Mart policy that prohibited "romantic involvements between workers regardless of whether such involvement takes place outside of work hours and off the employer's premises." Several employees discharged for violating the policy counter-complained that their rights of privacy were violated. Citing the New York State Legal Activities Law, which prohibits discrimination against employees who engage in lawful activities outside of work hours, they pointed out that dating is a lawful activity.

Judge Robert Patterson agreed. He ruled that, "a careful reading of the statue . . . indicates that 'cohabitation' that occurs off the employer's premises . . . and not on the employer's time, should be considered a protected activity for which an employer may not discriminate."

Looking the Other Way

Under such circumstances, a consensus seems to be developing that non-dating policies are unenforceable. A recent Time/CNN poll reports that 53 percent of American women and 57 percent of American men believe "we have gone too far in making common interactions between employees into cases of sexual harassment."

Most federal managers would prefer to look the other way until disruption develops. "Federal employees have privacy rights," says a supervisor at the Bureau of Alcohol, Tobacco and Firearms. "If they date each other and it doesn't interfere with getting their jobs done, I don't want to know. It's none of my business."

Likewise, a manager at the Equal Employment Opportunity Commission says he tells employees that "dating is your business, until it begins to interfere with the work. Then it becomes my business, and one of you will have to go. Transfer or leave. Take your choice."

One reason supervisors may not look askance at office relationships is that many of them have been involved in such relationships themselves. Nearly one-fourth of managers and executives surveyed by the American Management Association in 1995 said they'd had an office fling. Of those, a third of the men and 15 percent of the women said the relationship had been with a subordinate, while 9 percent of men and 17 percent of women said it had been with a superior.

The reality is that in today's world, both managers and employees have as much chance of finding their Prince or Princess Charming in the workplace as anyplace else--maybe more, given the 60- to 80-hour work weeks common today. And when they do, there is little their employers can do about it.

Mary Stanton has been a personnel and labor relations administrator for more than 20 years.