Posted by Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C. in News
Feb 14 2023
Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C. partner Josh Goodbaum appeared today on the Wall Street Journal’s podcast As We Work. The Valentine’s Day-themed episode addressed consensual workplace relationships – a topic Josh has previously discussed with partner Amanda DeMatteis.
Courtesy of the Wall Street Journal, here is the full transcript of Josh’s interview with host Erin Delmore:
Erin Delmore: Love can be really, really, really complicated, especially at work. That’s where Josh Goodbaum comes in. He’s an employment lawyer in Connecticut who can give advice on real life office romances and why the ones we see on TV sitcoms might not be the best models. He’s here to tell us how it is possible to mix love and work with minimal risk so you don’t wind up in his office. Okay, Josh, in one word, relationships at work, good or bad?
Joshua Goodbaum: Risky. Afraid I can’t give you a one word answer that’s either of the words that you offered.
Erin Delmore: I like risky. Tell us why.
Joshua Goodbaum: It’s not that it’s a fireable offense exactly. It’s that your employer doesn’t need a good reason to fire you. So some companies have policies that prohibit all workplace relationships because they’re concerned about the second legal principle that is sexual harassment, right? So they don’t want to open themselves up to potential liability. And there’s also evidence that suggests that workplaces that are permeated with romance or fraternization or sexual innuendo are workplaces people don’t want to work in. And so your employer might make a decision that simply, “Hey, we don’t want that in our workplace. Work is a place for work, and that’s it.”
Erin Delmore: We want to make super clear here that we’re talking about colleagues in the office who are dating, or two people who are interested in getting involved romantically. We’re not talking about somebody who is hitting on their coworkers or being inappropriate. Definitely not talking about two people who are in a hierarchy, because that seems like a real big no.
Joshua Goodbaum: Yeah, that’s definitely one of my rules for workplace dating. For the boss, the risk is obvious. Your subordinate may not feel comfortable saying no, and you might unwittingly engage in what we call quid pro quo sexual harassment, or your subordinate might say no, and then the next time you give them constructive criticism, they’re going to think it’s retaliation. Now, for the person in the bottom of the hierarchy, the risk is less obvious, but it’s no less real. Date the boss and your professional accomplishments are no longer your own. Your coworkers are likely to believe that the product of favoritism and other members of management are likely to discount any praise you receive.
Erin Delmore: Yikes. Okay. And Josh, you’ve worked with a lot of folks in this realm. Have you seen a number of these relationships take off pleasantly? I mean, are we seeing folks who’ve met at work and have this beautiful flourishing marriages? Conversely, have you seen it blow up? I mean, what do you see?
Joshua Goodbaum: I have seen many workplace relationships go south, but that’s because most of what I see as an employment lawyer is situations where there’s a problem, right? If everything’s going well, nobody needs me.
Erin Delmore: That’s the thing about being a lawyer.
Joshua Goodbaum: Yes. So one of the things I tell people when they’re getting into a consensual workplace relationship really early on, and this is maybe the least romantic place to start an office romance, is you’ve got to check your employee handbook. What are the policies? What are the rules that your employer expects you to follow?
Erin Delmore: I’m guessing that you meet with a lot of folks who have these relationships at work and don’t think that HR or their boss or their colleagues are going to find out. Do people have a false sense of how secretive they’re being? Maybe it’s just me. Are they that secretive?
Joshua Goodbaum: People are really stupid when it comes to romance, and I can’t tell you the number of inappropriate text messages and emails and photographs and videos that I have seen between coworkers. So even if you’re not documenting any of this and something that I as a lawyer can look at later, it is inevitable that people, including your bosses, including HR, are going to find out about what’s going on. If your relationship is succeeding in the way we conventionally think of succeeding, you two get serious. You’re moving in together. Maybe you’re getting married, you’re going to tell HR, everybody knows you met at work. Where else would you have met? Right? So frankly, it’s just better for optics. It’s better for your career trajectory. It’s better for your reputation that the bosses hear it from you than hear it through the grapevine.
Erin Delmore: Well, defining relationships is so murky. In the real world, taken out of an office context and it’s so tricky, and suddenly this person’s your colleague, even if you work in different departments, you see each other all the time. What is a relationship to one person might not be a relationship to another person.
Joshua Goodbaum: Awkward enough when it’s two people who don’t work together. But it’s particularly awkward when the stakes are not just your feelings or your personal future, but also your professional future and reputation.
Erin Delmore: Well, I’ll tell you, I love awkward, so let’s bring in two of my favorites, Kelly and Ryan from the TV show, The Office.
Joshua Goodbaum: Okay.
Erin Delmore: An on-again, off-again couple that likes to bring all their drama into work and sometimes make the people around them a little uncomfortable. Here’s Kelly talking about it to a coworker.
Kelly: Oh my God, Jim, last night, Ryan and I totally finally hooked up. It was awesome.
Jim: Oh, that’s great. I’m really happy for-
Kelly: I know, and it was so funny because we were at this bar with his friends and I was sitting next to him the whole night and he wasn’t making a move. So in my head, I was like, Ryan, what’s taking you so long? And then he kissed me.
Erin Delmore: Okay, Josh, our expert. What say you?
Joshua Goodbaum: Well, I guess it depends on who I’m advising, but I’d probably tell Kelly it’s good to be friends with your colleagues, but maybe those are not the sorts of friendships where you want to talk about your romantic interests. Likewise, if you’re Jim, it’s perfectly appropriate to say to Kelly, “Hey, Kelly. I’m happy to be your friend, but I’m not interested in talking about what might be a blossoming relationship between you and another one of our coworkers. I think it’s just a really fraught area. It’s dangerous. I don’t want to say something that will be misinterpreted or that I’ll regret, and let’s just keep this workplace professional.” That might sound really boring, but the reality is that boring minimizes risk.
Erin Delmore: I think Jim might like that answer though.
Joshua Goodbaum: Jim might, frankly. Jim doesn’t sound that pleased to be talking with Kelly about… And I should add here that it’s not just Kelly and Ryan who have a problem here. It’s also Jim in the sense that Jim here may be sexually harassed too. We don’t often think about the consequences of workplace relationships on the people who aren’t in it on your other coworkers, but there’s a second kind of sexual harassment. There’s not just what we call quid pro quo. That is the conditioning of a workplace benefit on what some people call sexual favors. There’s also something called hostile work environment sexual harassment. That’s when someone is working in a workplace environment that is permeated with sexual innuendo, with references to sex or romance or relationships, and that can be just as uncomfortable or damaging to somebody as can be quid pro quo sexual harassment.
Erin Delmore: Well, I’m glad you’re bringing up the effects that this has on other people in the office because a lot of times people can run into a situation that they don’t want to be a part of, and it’s not really a case of oversharing. It might be a case of seeing something that you don’t want to see. We have another clip here from The Office, and this is an exchange between Phyllis and Angela, and Angela’s bullying Phyllis a little bit, and Phyllis decides it might be time to use a little bit of leverage that she has against Angela. This is Angela.
Angela: Face it. The only power you have over me is this little secret that I know you’re not going to tell. Oh, and you want to know how I know that? Because then you won’t be able to plan your stupid tacky parties anymore, so you move the tree.
Phyllis: Okay. Angela’s having sex with Dwight, I caught them doing it after Toby’s going away party.
Joshua Goodbaum: Oh, God. Love you, Phyllis. The long-suffering Phyllis. I mean, this scene makes me think of another thing I tell people frequently who are in consensual workplace relationships or thinking about an office romance. Office romance should not mean romance at the office. Don’t flirt at work, don’t kiss at work, don’t hook up at work. It might sound steamy. It might be a thing that happens on Grey’s Anatomy or The Office, but it is a recipe for disaster. That goes for long married couples as much as goes for people in new or blossoming relationships.
Erin Delmore: Well, let’s go to breaking up, because the real question I want to ask is breaking up is so difficult under even the best of circumstances, but when you break up with someone at work, you’re still going to see them. You’re still in their orbit. So what’s the responsible way to go about it, Josh?
Joshua Goodbaum: Well, if you’ve followed my advice, then you have reported your relationship to HR toward the beginning of the relationship, and so just as you needed to document the start of your relationship, you do need to document the end of it. Nothing’s going to make your breakup easy, but what will make it less likely to result in an HR complaint is to be transparent about it. So go to HR, tell them you two are no longer together, and then help HR coordinate how to manage that, right? Maybe it involves a transfer for one of you. It shouldn’t be an involuntary transfer, but maybe one of you would prefer a different opportunity. Maybe you’d prefer a change of scenery. Maybe you’d prefer a change of reporting structure.
Erin Delmore: Is it the company’s responsibility though, to make sure that both people can work through that breakup and that each person’s comfortable?
Joshua Goodbaum: It’s not their legal obligation in the sense that it’s not like you’ve reported a disability for which you are entitled to a reasonable accommodation. On the other hand, companies want to solve problems in their workforce by and large, because it costs them a lot of money to hire and train people. And if you’re doing your job well, they probably want you to continue to succeed there.
Erin Delmore: Seems to me like when employees get together at work, there’s no real benefit for the company, but when they break up, there’s just downside for the company. Am I just being cynical?
Joshua Goodbaum: Well, that may be why you’re seeing companies prohibit consensual workplace relationships entirely. They’re saying, “We just don’t want to deal with this. This should not be our problem.”
Erin Delmore: How come it is that though? Because you’re now talking about bosses and subordinates, you’re saying companies prohibiting consensual relationships. Full stop.
Joshua Goodbaum: I don’t think anybody knows the answer to that. Different companies have different policies, and there are no laws that tell a company it has to have one policy or another. Some simply say, “No fraternization.” Others say, “If you’re going to end up in a relationship, you tell us.” And many companies, these tend to be smaller companies, don’t have any policies about this at all.
Erin Delmore: It’s so tricky though because I think people come to this topic with so many feelings of their own, “Oh, I would never date somebody at work.” Or conversely, “I’d love to date someone at work. Here’s somebody who I think is trustworthy, who I know I can rely on, who I’ve gotten to know. It can feel like a great choice. How else are you going to meet somebody?”
Joshua Goodbaum: Right. What is a more quintessential contemporary American romance than Barack and Michelle Obama? And where did they meet? They met at Sidley Austin.
Erin Delmore: At work, at a law firm.
Joshua Goodbaum: Right?
Erin Delmore: Well, knowing all you know and given all you’ve seen, would you date somebody at work?
Joshua Goodbaum: This is such a lawyer answer, but it depends.
Erin Delmore: Oh, come on. I.
Joshua Goodbaum: Here’s what I tell you I wouldn’t do. I definitely would not date somebody in my reporting structure. I probably would not date someone where if we broke up, I couldn’t keep my job or they couldn’t keep their job. But if I worked at a big company and I met someone I was attracted to who worked in a different department, I might find a way to send that person a text message or a personal email, try to get in touch with them other than through the workplace official communication channels. And I might say, “Hey, do you want to grab a drink sometime?” Right? Make sure you give the person an out. Make sure they’re free to say no. Don’t ask more than once, and maybe it’ll turn into something, but if it doesn’t, that’s okay. And if you date for a while and then you break up, you can probably both go on working at this company and not have to interact all that much. There’s awkwardness, and then there’s catastrophe in a breakup, and you want to try to avoid the ladder.
Erin Delmore: Avoiding catastrophe feels like a really good game plan.
Joshua Goodbaum: Yeah. Yeah. Any lawyer would tell you that, I think.
Erin Delmore: Josh’s playbook for playing by the rules in an office romance. First, figure out if the relationship is worth the risk. If you start dating, make it workplace official by telling HR or your supervisor. Better that your bosses hear it from you than through the grapevine. Remember that, as Josh says, your personal and professional reputations are intertwined, and word might get out and be prepared for the consequences if the relationship doesn’t work out. Next time on the show, we’re thinking about how you return to work, not just coming back from a vacation, but after many months away. Maybe you were caring for a sick relative or taking care of your own health issue or having a baby. It can be so tough to return from a leave of absence. There might be new coworkers, new policies, maybe even a new boss. How can you prepare for a successful return to work and manage expectations and limitations around what it’ll take as you get back into the groove? That’s next week. Like the show? Tell your friends to subscribe and give us a five star review on your favorite platform. As We Work is a production of The Wall Street Journal. Charlotte Gartenberg is our producer. Jonathan Sanders is our booking producer. Scott Saloway is our supervising producer. Our sound designers are Jessica Fenton and Michael LaValle, and Jessica Fenton composed our theme music. I’m Erin Delmore. See you next time.