By Chisa Chevernick Intel’s CEO, Brian Krzanich, recently resigned after a past consensual relationship with a subordinate was brought to light. Krzanich was forced to resign because the relationship was barred by Intel’s non-fraternization policy.

Non-fraternization policies dictate what types of relationships and behaviors are acceptable between employees and managers. These policies may address romantic or sexual relationships, as well as close friendships, and take into account the ability of one party to influence the terms and conditions of employment of the other party – such as influence over raises and promotions.

The most common anti-fraternization policies restrict all romantic relationships between supervisors and their direct reports. Few policies impose an absolute ban on workplace relationships – and those that do risk violating the law. While some companies choose to avoid non-fraternization policies entirely, believing that employees’ lives outside of work remain private, the truth is that relationships outside of work can and do impact the workplace environment. Such relationships can impact morale and risk implicating your sexual harassment, non-discrimination, and non-retaliation policies.

Why you might want a non-fraternization policy

Relationships between co-workers can complicate the work place and influence team dynamic, but a relationship between a manager and a subordinate employee can create much larger concerns. Even if no special treatment is being granted, there will always be the perception of special treatment and favoritism. A subordinate employee may find their credibility greatly impacted and their successes questioned long into their career. In fact, in my experience, a manager may even try too hard to avoid the appearance of favoritism and end up having an adverse impact on the conditions of employment for the subordinate employee. This might include stricter adherence to the corrective action policies, even for minor infractions; lower performance ratings and raises than deserved; and denying time off or development opportunity requests – all to avoid the appearance of special treatment. Additionally, disclosed and undisclosed relationships breed office gossip which increases job dissatisfaction and decreases productivity.

Aside from the impacts to morale, relationships between managers and subordinates could also implicate your sexual harassment, non-discrimination, and non-retaliation policies. A once consensual relationship between a manager and direct report could “morph” into a non-consensual relationship and violate sexual harassment policies. Managers carry the balance of power and have the ability to impact an employee’s pay and their future career. A subordinate employee who wants to terminate a previous relationship may not believe they can do so without repercussions to their career. “Quid pro quo” sexual harassment can occur when a manager has the ability to exert this type of influence on a subordinate’s career and can grant or withhold professional favors in exchange for sexual favors or a romantic relationship. If a relationship ends, the company risks accusations of retaliation if the subordinate employee’s pay, job duties, hours, or employment status are adversely impacted following the conclusion of the relationship.

The “Dos” and “Do nots” of an Effective Non-Fraternization Policy

What does a business owner need to consider when implementing a non-fraternization policy? First, let’s ask “do I need one?” Yes. Yes, you do. Your policy can be restrictive or structured more “leniently” but opting for no policy at all places your company at unnecessary risk of sexual harassment, discrimination, and retaliation allegations on the legal side and increased turnover, lower productivity, and less satisfied customers on the operations side.

Below are some guidelines for writing an effective non-fraternization policy:

Dos, Musts, and Shoulds:

• DO explain why the policy is necessary and who is affected by the policy.

• DO define, clearly, what constitutes “fraternization” under the policy, i.e. dating, romantic and/or sexual relationships or close friendships.

• MUST prohibit romantic relationships between 1) Managers and their direct report and 2) Managers and any employees whose terms and conditions of employment (pay raises, promotions, adverse employment actions) may be influenced and/or affected by said manager.

• SHOULD prohibit romantic relationships between employees separated by two levels or more in the chain of command, regardless of reporting relationship.

• DO define what behaviors are unacceptable and apply these standards to all employees, e.g. visible displays of affection; long non-work-related conversations.

• DO outline a requirement to report all relationships that would violate the policy, including the process to report and steps the company may take to sever an implicated reporting relationship.

• MUST state the consequences of violating the policy (progressive discipline policy).

• DO explain how an employee may ask questions or gain further understanding of the policy.

• DO establish a reporting process for employees who have witnessed misconduct.

• MUST execute your policy fairly and consistently across all levels of the organization.

Do Nots:

• DO NOT create an overly broad policy that creates an absolute bar on all workplace relationships. This could violate the National Labor Relations Act, which protects workers’ rights to assemble and discuss workplace conditions.

• DO NOT enforce your policy in a way that could create a disparate impact or discriminate against any protected class. Policies must be executed fairly and consistently with consideration given to whether or not the policy might disproportionately impact a group of employees.

• DO NOT underestimate the impact of an overly restrictive policy on employee morale. Overly restrictive policies encourage employees to engage in deceitful behaviors to hide relationships and escalates office gossip.

• DO NOT underestimate the impact of having NO non-fraternization policy on employee morale. The perception of special treatment and favoritism will impact team productivity and turnover.

If your company does not have a non-fraternization policy in place, or if you have concerns about the legality or effectiveness of your current policy, contact Chisa Chevernick and AnthonyHR to discuss how our HR and Legal Compliance team can help you protect your business from a frivolous lawsuit.