Avoid intruding into and basing employment decisions on employees’ non-marital personal relationships. As a general rule, avoid inquiry into an employee’s off-duty activities in these areas, particularly in the absence of any showing of effect upon the employee’s work performance.

However, an employer can try to limit its potential liability for problems that may arise from consensual relationships that occur between employees in the workforce. The concern for employers is that if the relationship goes bad, one of the employees may bring a claim for sexual harassment or discrimination. This concern is heightened when the relationship is between a supervisor and a subordinate. For more information, see Harassment.

Consensual relationship agreements are one tool employers can use to minimize the potential for discrimination or harassment claims and to minimize disruption in the workplace. The agreement will essentially provide that company policy prohibits employees from using their authority to induce a nonconsensual relationship. The agreement should provide that consensual relationships should not cause disruption in the workplace or lead to sexual conduct in the workplace.

The agreement asks the employees to acknowledge that the relationship is voluntary and consensual and that they will abide by all company policies, including policies prohibiting discrimination, harassment, unprofessional conduct, conflict of interests and favoritism. Employers may wish to consult with legal counsel prior to implementing such policies.

• Consensual Relationship Agreement

You may not discriminate on the basis of lawful conduct that employees engage in during nonworking hours and off premises.3 For more information, see Lawful Conduct Discrimination.

Use caution in imposing discipline for an employee’s off-duty conduct where the discipline is based on the employee’s romantic or social activities.4

1.Govt. Code sec. 12940(a)