Anti-Nepotism and Fraternization Policies
Some employers have fashioned comprehensive behavior codes for their employees, setting out the bounds of workplace behavior they consider professional. The dictate that gets caught in many workers’ craws is the prohibition against dating others in the workplace, sometimes quaintly referred to as fraternizing. Others go a step farther and prohibit married couples from working in the same place.
Such attempted controls over workers’ personal relationships fly in the face of reality. Workplace experts claim that as many as 70% of all male and female workers have dated someone they met at work. Those are far better odds than you have of meeting someone at a bar, party, or other social gathering specifically engineered to be a meeting place.
But courts have been painfully slow to recognize the social reality of today’s workplaces. During the last decade, employees have been fired for having extramarital affairs, for attending out-of-town conventions with someone other than a spouse, and for dating and marrying coworkers.
Some employers think that nepotism—hiring an employee’s spouse or other relative—is an efficient way to recruit new workers and to keep them happy by surrounding them with loved ones. But others adamantly refuse to allow two spouses to be part of their workforce. They reason that married couples will be inconvenient at best, insisting on the same time off for vacations and holidays. At worst, they claim that being married will compromise employees' abilities to do their jobs. For example, some police departments have argued that married troopers would not react objectively if a spouse got injured on the job—or that their credibility would be undermined if called to testify to support one another’s actions.
Employers also worry that morale will suffer among other employees. For example, what if coworkers perceive that one spouse is treating the other more favorably than the rest of the team? How is an employer to supervise the boss's spouse? What if an employee wants to make a harassment complaint to HR, but the head of the HR department is married to the alleged harasser? Not to mention the problems that can arise at work if the marriage hits a rough patch.
A number of states prohibit discrimination based on marital status. In all of these states, it's illegal to treat an employee differently based on the fact that he or she is married, single, or divorced. But states differ in how they handle discrimination based on the identity of the employee's spouse. Some states view an anti-nepotism policy as an acceptable exception to the prohibition on discrimination, at least if one spouse would supervise or report to the other. In other states, it's illegal to transfer, terminate, or refuse to hire someone because he or she is married to a coworker. Contact your state fair employment practices agency to find out more about your state's law.
Where the issue is prohibiting employees from dating rather than marrying, the law is even less clear. Few of the policies banning workers from dating have been challenged in court—most likely because the love-struck workers kept their relationship a secret, or they got annoyed enough to get jobs elsewhere, or their love took a back seat to the stress of a court battle, ending the relationship.
To many, policies prohibiting coworkers from dating seem paternalistic and contrary to a cardinal law of human nature: Proximity often breeds attraction. Those with the gumption to challenge such policies might base a legal claim on their right to privacy, freedom of association, wrongful discharge—or, if the policies are enforced disproportionately against workers of a particular age, gender, or race, they might claim a violation of civil rights.
A number of employers have adopted strict policies prohibiting supervisors from dating people they supervise, although, these days, a growing number give the supervisor the option of being transferred rather than having to leave the company. While these strong antidating policies may be understandable given the relatively low legal threshold for a supervisor’s conduct to be considered sexual harassment, they may be just as impossible to enforce. Consider the practical difficulty, for example, in determining exactly when two people have crossed the line between friendly and involved. Strict policies prohibiting liaisons between bosses and worker bees also seem to encourage a double standard of behavior within the ranks of employees. Far better to remember that since workplace harassment is almost always about an abuse of power—not about romance gone sour—the focus should be on preventing intimidation.