A lengthy article in the Business section of The New York Times of February 11, 2018 recalled — explicitly in response to the #MeToo movement — all the turmoil and controversy when, in the early 1980’s, a young woman executive with a Harvard MBA named Mary Cunningham married her boss at a highly visible public company. Apparently a love match, the pair remained married until his death last year, but the woman executive, who had risen rapidly due to her talents, was pilloried as an attractive schemer sleeping her way to the top of the corporate heap. Ironically, according to the Times article, it was the career of the older, more senior male executive which ultimately suffered. This issue — legitimate and mutual romance in the workplace — is different from the stories of sexual harassment, groping, salacious remarks, and offers to trade corporate advancement for sexual favors which have in recent months become the subject of national attention. In some ways, however, it can be even more challenging for executive employment attorneys.
Many executives of both genders work long and demanding hours (longer than ever these days according to many social observers), and workplace friendships with mutual attraction can turn into genuine romantic attachments. This is not surprising; the workplace, be it at a financial services company or a university administration, is where we spend most of our lives and where we meet other people on a routine basis. What are the legal consequences of these relationships (again, assuming they are mutual, genuine and unforced on either side)?
For executive compensation attorneys the analysis begins with the policies and procedures of the particular employer. We start by taking a look at the rules. Even ten years ago many institutions did not deal with this issue, but this is changing; so, the first place to look is the applicable rules of the organization in question. Are uncoerced romantic relationships between consenting adults prohibited or discouraged by the Company handbook or personnel manual? If so, does this violate a fundamental freedom of association?
But what the rules do or don’t say is not necessarily the end of the analysis.
The next questions is: Is there a power imbalance between the executives who are romantic partners? The answer is almost always yes, but the key may be whether the higher status executive has any real workplace power, direct or indirect, over his or her romantic partner who happens to be a lower status executive.
Here, as always, the facts determine the outcome of the analysis. If the pair of executives work in totally different divisions or groups of the same company, and neither one has any power at all to affect, review, judge, promote or in any way influence the compensation or career of the other, and the Company handbook does not prohibit the relationship, there may not be any legal problem.
If the opposite is true — that one of the romantic partners is responsible for managing, reviewing or determining the advancement (or lack thereof) of the other partner — there could be a big problem even if the relationship is not specifically prohibited by the employer’s rules.
Of course, it would be naïve to pretend that — particularly these days — appearances don’t count for almost as much as substance. If the senior status executive is male and has the CEO’s ear, the fact that he is in a totally different division of the Company from his romantic partner may not be enough to avoid a problem even if the Company handbook is silent on the situation.
Always consult your executive employment attorney for the proper analysis and advice. Full disclosure and the employer’s explicit approval, usually combined with some shifting of the responsibility for supervising and judging the lower status executive to another senior executive with no personal relationship to either executive may be a solution in some cases, but there is no “one size fits all” rule.
The Times seemed to imply that the Mary Cunningham situation is unlikely to be repeated in today’s workplace, where, although progress is still slow, a greater number of women are making their way to top executive jobs We are not so certain. When in doubt, consult executive employment counsel.