SUPERVISORS DATING SUBORDINATES

QUESTION: The manager of our association is having an affair with an employee, how best is this handled by the board?

ANSWER: It's deja vu all over again. Last week it was a manager sleeping with a board member. Whenever you put men and women together, you have sexual attraction. The risk for employers involves the collision of two legal principals. California has a constitutional provision protecting privacy, which means romantic relationships between coworkers should be none of the association's business. However, this runs headlong into a competing principal against sexual harassment, i.e., employees should not feel pressured to submit to sexual advances to preserve their jobs.

Risks. In addition to potential claims of sexual harassment, associations face other risks. The first is that the manager ceases to be objective about his/her subordinate's work performance. This often leads to morale problems with other employees who may believe that preferential treatment is being given to the sexually active co-worker. The second is the loss of internal checks and balances if the manager and subordinate have any control over the association's monies. Working together, the two can cover a lot of tracks. A third risk is that a breakup could lead to a revenge-motivated lawsuit by the subordinate claiming that the relationship was never consensual. Finally, any disciplinary action against the subordinate could lead to a retaliatory lawsuit.

Prohibit Dating. In my opinion, it is never okay for a supervisor to date a subordinate. The inequality of the supervisor-subordinate relationship creates an element of coercion or claimed coercion. To protect against potential liability, associations should implement workplace rules that prohibit any kind of dating or sexual contact between supervisors and subordinates, whether on duty or off. This avoids the appearance of favoritism, conflicts of interest, and unprofessional or disruptive conduct in the workplace.

Love Contract. If your association does not already have rules prohibiting supervisor-subordinate relationships, you could protect the association by having the manager and staff member sign a consensual relationship agreement, also known as a "love contract."

The contract requires the manager and subordinate to (i) acknowledge that they are aware of the association's policy against sexual harassment, (ii) affirm that their relationship is mutually agreeable and not coerced, (iii) consent to guidelines on appropriate office behavior, such as refraining from displays of affection at work and work-related events, and (iv) agree that the relationship may be ended at any time by either party without fear of retaliation.

RECOMMENDATION. Associations with employees should have handbooks, which have been reviewed by legal counsel, distributed to all employees. One of the policies should address the issue of co-worker romantic relationships. I also urge associations with employees purchase employment practices liability insurance--lawsuits by employees more often than not defensed, but the legal fees are exorbitant. It's worth the cost of premiums.

Contact us if you would like us to prepare an employee handbook for your association, or update your existing handbook. For insurance brokers who specialize in homeowner associations, see the Service Directory

Updated by ADAMS KESSLER 9/30/2008