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Anti-Fraternization Policies Globally and the Impact of #MeToo

New York Law Journal

Erika C. Collins, Member of the Firm, and Ryan H. Hutzler, Associate, in the Employment, Labor & Workforce Management practice, in the firm’s New York and Washington, DC, offices, respectively, co-authored an article in the New York Law Journal, titled “Anti-Fraternization Policies Globally and the Impact of #MeToo.”

Following is an excerpt:

Although drafting and implementing uniform global policies in each country where multinational companies conduct business likely is preferable from an administrative perspective, such policies are not always lawful or culturally sensitive across jurisdictions. Indeed, such uniformity can be problematic, and company policies often should be localized. This requires analyzing the local requirements in each country to determine if any changes can be made to accommodate local law without compromising the purpose and integrity of the policy.

The Global vs. Local Debate

Anti-fraternization and workplace romance policies illustrate this global versus local tension because these policies can be culturally abnormal in some countries, even where there is no law being offended, such as the United Kingdom. In addition, favoritism is a significant risk when multinational companies implement and enforce anti-fraternization and workplace romance policies globally. This is especially relevant in the context of “management-subordinate relationships.” Romantic relationships between management and non-management employees have the potential not only to create the appearance of favoritism and employee dissension, but also to increase the risk of potential claims of sexual harassment. To protect against these possible pitfalls, multinational companies may want to adopt an anti-fraternization or workplace romance policy that disallows supervisors from having a reasonable expectation of privacy when pursuing intimate relationships with subordinates.

While U.S. companies often will consider adopting a global anti-fraternization or workplace romance policy, these policies are problematic in some jurisdictions, such as France, and are uncommon and discouraged in other countries, such as Italy, as they are viewed as a violation of employees’ privacy. Specific to France, employers may not interfere with employees’ freedoms if such interference is neither justified nor proportionate, and an employee cannot be dismissed based on an event related to his or her private life, unless favoritism were uncovered or the romantic relationship had an adverse impact on the business. Further complicating the issue, in other countries different classes of employees may be entitled to various rights. In India, for example, workmen enjoy far greater rights as compared to non-workmen and, therefore, it likely is more difficult to terminate a workman’s employment in the event of breaching an anti-fraternization and workplace romance policy. Germany provides yet another example where the law differentiates between employment levels. While a senior executive may be prohibited from having intimate relationships with subordinates whose professional career can be directly and significantly influenced, restricting a standard professional employee’s relationships may not be justified by a prevailing company interest.