This article was authored by Mark D. Brookstein, David N. Michael and Sophie M. Michael (Summer Law Clerk).
The internet lit up recently with viral footage from a “kiss cam” at a Coldplay concert in Boston, Massachusetts. The clip, now dubbed by some as “Coldplay Gate,” depicts the married CEO of Astronomer, Inc., having an affectionate moment with the company’s Chief People Officer (CPO). The company initially stated that both the CEO and CPO had been placed on administrative leave pending an internal investigation (and denied that the other woman who was gawking also worked there in HR). Since that suspension, the CEO has apparently resigned. (We note he is no longer listed as a member of the “Leadership Team” on the company’s website.) This past Monday it was reported the CPO had also resigned (although she remains on the website).
Lead singer Chris Martin’s devastating quip, “Uh oh. Either they’re having an affair or they’re just very shy,” lit the proverbial fire on social media and underscores the impact such a private encounter turned public can have on a company.
With such frenzied publicity and attendant online chatter (much of it snarky), this incident raises serious questions about workplace romance and company policies. Relationships between one in a position of power and a subordinate employee create a myriad of legal considerations in the workplace, including sexual harassment, discrimination, hostile work environment and favoritism. When a subordinate or other employees raises concerns over such conduct, it is the employer that could be held legally responsible.
Discrimination and a Hostile Work Environment
At the federal level, the Civil Rights Act of 1964 (or Title VII) prohibits employment discrimination based upon sex, including issues that can arise from workplace relationships. Sexual harassment, which can include a “hostile work environment,” may result from an intimate relationship, especially when the relationship involves a power imbalance.
But what if the relationship appears to be consensual, as with our couple at the concert? Legal issues may nevertheless arise. For example, what if the CPO were to sour on the relationship after a few weeks and break it off, after which the CEO took “adverse employment action” against her, such as giving her a poor performance review, demotion or even termination of employment? Alternatively, what if the relationship continued and the CPO received a promotion that another employee believed they were more qualified for, giving rise to a “favoritism” claim (at least in some jurisdictions)? Because the CEO was ultimately acting on behalf of the company, the company could be held responsible for discrimination based on the relationship.
What Employers Can Do: Laying the Legal Groundwork
So how does a company protect itself against such circumstances? Does your company policy prohibit romantic relationships between direct reports or require reporting of such a relationship subject to express conditions?
Employers can take steps now to prepare for the next Coldplay Gate.
Employment agreements with executives should be reviewed to make certain they include well-drafted “cause” provisions. Such clauses may be worded to specifically address violations of company policy, including those stemming from interpersonal employee relationships or causing negative publicity for the company.
Updating employee handbook language is equally important. Employers who clearly define what constitutes a romantic relationship and outline specific protocols in their policies are better equipped to address inappropriate conduct. To reduce legal exposure, romantic relationship policies should be narrowly tailored (e.g., requiring those in a romantic relationship to transfer departments, work different shifts or accept resignation), rigorously documented (typically in the form of a consensual relationship agreement or love contract) and applied uniformly across the organization.
While employers can take these precautionary measures, lapses in judgment may still occur. Employers must react to such situations promptly. Contact employment counsel, review retaining an outside investigator to conduct an investigation (who internally can investigate the CEO?), consider suspensions as a means to stem any further complications—the list goes on and on.
Employers should also consider establishing a crisis management team that can quickly respond to incidents such as Coldplay Gate. Plainly, the members of that team should not be limited to the CEO and head of HR. Consider adding in the entire executive team, one or more board representatives or a board committee, the general counsel (or outside counsel), the PR or communications team, and another HR representative. In situations (such as here) where social media explodes, consider retaining an outside public relations firm to help with rapid crisis management, such as determining if, when and how to respond to negative social media.
Gould & Ratner Can Assist
If a version of Coldplay Gate occurs at your company, start by calling your employment attorney at Gould & Ratner immediately (the sooner, the better). We have extensive experience in assisting employers in resolving complicated employee incidents, such as those present in Coldplay Gate. We also can answer any questions you have about employee fraternization policies and how they affect your business.
