If dating is merely discouraged, the policy should also indicate the counseling or documentation that will occur if employees violate the policy.The policy might also be limited to supervisor/subordinate dating, or allow dating between co-workers who do not work alongside one another.Often, an employee will argue that he or she was an unwilling participant in a relationship that merely appeared to be consensual.
An employer may violate an employee's right to privacy by regulating the employee's private off-work relationships.
The employer is most at risk when trying to investigate and enforce a "no dating" policy by hiring a private investigator to follow the employee around, secretly reviewing an employee's voice mail, or listening in on an employee's office phone line. Consensual Relationship Agreements As an alternative, some employers require that employees enter a "consensual relationship agreement." The agreement, signed by both employees and management, provides that the employees will not allow the relationship to interfere with or impact the work environment.
So long as the spouses don't supervise one another, a "no dating" policy enforced against spouses would violate this law.
Another problem arises from concerns about an employee's right to privacy while off the job.
A rigid zero tolerance policy may result in the loss of two very good employees who fall in love with each other.
However, any policy that allows too much case-by-case discretion exposes the employer to discrimination claims.In a consensual relationship between a supervisor and a subordinate, the subordinate often is the recipient of preferential treatment.Employees have asserted claims for sexual harassment based on the theory that they can't receive the same benefits because they are not "sleeping with the boss." However, most courts have rejected this argument because such a consensual relationship disadvantages both male and female employees equally.Business Necessity: Think about your business justification for imposing a consensual relationship policy.How have consensual relationships been handled in the past?by requiring termination or transfer) may create sexual discrimination liability.