Conduct Codes | Privacy Rights

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 either dated or married 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. There are no clear guidelines but an appeal to common sense. Where that fails, and an employer’s demands truly seem unreasonable, there may be no alternative but to sue.

1. Policies Against Marrying

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 make workers less stable. 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.

No Paint, No Powder, No Job

Darlene Jespersen toiled for nearly 20 years as a bartender at the sports bar in Harrah’s Casino in Reno. Along the way, she garnered rave performance reviews from her supervisors, along with a stack of customer feedback forms praising her excellent service and good attitude.

Then Harrah’s served up something new—a Beverage Department Image Transformation Program with new appearance standards for employees, called “Personal Best.” It required all women who work in the beverage department to wear makeup—foundation or powder, blush, lipstick, and mascara applied neatly in complimentary colors”; stockings; colored nail polish; hair “teased, curled, or styled every day” and “worn down at all times, no exceptions.”

Men, on the other hand, were simply forbidden by the policy from wearing any makeup of any kind and required to maintain trimmed hair and fingernails.

Jespersen claimed that making up was not her style—and protested that it made her feel “dolled up” like a sexual object and undermined her ability to deal with drunk or rowdy customers on the job. After gamely trying to follow the Personal best guidelines for a while, she stopped—and was fired.

Jespersen filed a federal lawsuit accusing Harrah’s of sex discrimination. But an allmale panel held against her, opining that that there was no proof that Harrah’s Personal Best policy imposed unequal burdens on men and women workers.

Jespersen v. Harrah’s Operating Co., Inc., 392 F. 3d 1076 (2004).

Some such policies, however, may be on shaky legal ground. Nearly half the states explicitly prohibit public and private employers from discriminating based on marital status.

But whether or not your state prohibits marital status discrimination, the legality of no-spouse employment rules is still unclear. Courts called upon to decide the issue have been contradictory. Some have found that there is no business justification for preventing coworkers from marrying or working together. Other courts stick stridently to the letter of workplace policies, reasoning that employees are legally free to ban married workers on their premises.

2. Policies Against Dating

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 were surreptitious about their strickenness, 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 fly in the face of 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 may 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 fired on the spot. 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.