The Extramarital Affair at Work

​Gossiping. Backstabbing. Falling morale. Fading respect for leaders. What workplace event could cause all these things? An extramarital affair.

Nearly one-quarter of workers who reported a workplace romance said their affair involved a person who was married at the time, according to the results of a CareerBuilder survey.

Romances between co-workers, and extramarital affairs especially, tend to raise eyebrows. So how is a manager or HR director supposed to deal with it?

"People have lots of opinions about things like that—moral judgments about whether it's right or wrong," said Mark Kluger, founding partner at employment law firm Kluger Healey in Fairfield, N.J. "To the extent that this affects the workplace … [that may] have some impact on how an employer deals with it."

Joe Flanagan, senior career advisor at Los Angeles-based Mint Resume, a career advice website and online resume service, doesn't mince words: "It will affect the working environment," he said. "That's because an extramarital affair is a controversial issue that may [lead] to employees gossiping and backstabbing, which is never good. It may affect the performance of both the involved and uninvolved employees."

A Potential Minefield

Instances of workplace romance have hit a 10-year low, with 36 percent of workers in 2018 reporting that they were dating a co-worker, down from 40 percent in 2008, according to CareerBuilder's survey. Twenty-four percent of those admitting to a workplace romance said they'd had an affair in which one person was married at the time.

Any workplace romance, extramarital or not, can damage workplace morale or productivity if there are inappropriate displays of affection, favoritism from a supervisor dating a subordinate, a bad breakup that results in co-workers choosing "sides" or sexual harassment.

But an extramarital affair is its own potential minefield.

Imagine a married executive has an affair with another executive who's single. Everyone at work knows the married executive's wife—they've socialized with her for years and she comes into the office often—and now people feel uncomfortable and guilty when they see her. They're also losing respect for the married executive, who can sense the disapproval and starts retaliating with poor performance reviews for those he believes are critical of the affair.

Such affairs "often cause turmoil and can disrupt the workplace for years," said Chris W. McCarty, an employment attorney with Lewis, Thomason, King, Krieg & Waldrop in Knoxville, Tenn.

Will a Policy Help?

Some employers might want to create policies to prohibit romantic relationships at work—or even to specifically prohibit extramarital affairs.

While creating "no fraternization" or "no romantic relationship" policies may seem like a good idea, they can create a different set of challenges.

David Reischer, attorney and CEO of LegalAdvice.com, notes that "an absolute 'no dating' policy is hard to enforce."

Kluger agrees. "I recommend against them, frankly, because I don't think you can keep two people apart if they want to be together," he said. "And if there's an employer rule against relationships among co-workers or subordinates and supervisors, it's just going to be broken. You essentially almost encourage your employees to lie to you by having a rule prohibiting consensual relationships at work."

Instead, he said, it's better for an employer to encourage employees to be upfront and honest and to disclose when there are relationships.

If an extramarital affair is causing turmoil at work, a manager may have some obligation to investigate, Kluger said.

"That's a little bit sensitive and tricky because the employer really would need to have some kind of evidence that there are public displays of affection or things that are … making employees uncomfortable," he noted.

"As a manager or HR [staffer], noticing subtle and not-so-subtle behavioral changes among your employees as a result of a romance is part of your job," said Ellen Mullarkey, vice president of Messina Staffing, a national search, staffing and consulting firm based in Chicago. "The best thing to do is to keep an eye on the people involved."

Flanagan said managers "should have proof or evidence regarding the affair before confronting the employees involved because without it, it is merely an accusation."

"I would advise the employer to ask the parties involved what's going on and to really keep it focused on how it impacts the workplace," said Debra Johnson, assistant general counsel and human resources consultant at Hollywood, Fla.-based Engage PEO, which provides HR solutions for small and midsize businesses. "If there are any policies that prohibit romantic relationships in the workplace at that particular jobsite, then I would always advise the employer to make sure that it uniformly enforces those policies. If you do have a policy, make sure that it's not invading privacy."

Is Marital Status Protected?

And what if an employer disciplines or even fires workers involved in an extramarital affair but doesn't do the same to romantic couples who aren't married? Could the disciplined workers have a valid lawsuit based on marital-status discrimination?

The case law on this is unclear. Federal law does not prohibit workplace discrimination based on marital status. But firing someone for having an extramarital affair may invite a lawsuit in states that do prohibit marital-status discrimination.

As far as Kluger is concerned, "there really is no legal difference between married people and unmarried people at work." In other words, if an employer allows two consenting, single adults to have a relationship but then reacts differently to a consensual relationship between married workers having an affair, "it's possible that an employment lawyer can make a claim for marital-status discrimination."

[SHRM members-only Express Request: Workplace Romance]       

To Discipline or Not?

Whether to discipline someone for an extramarital affair depends largely on what the company's policy is about romantic relationships at work. 

"No disciplinary action should be taken if no company policy has been violated because, married or single, your employees have a right to privacy," Mullarkey said. "This changes should the employees having the romantic relationship do something that violates company policy."

If the workers having the affair violate policy, employers can reassign the employees, especially if one is supervising the other, Johnson said.

"If there are any allegations that are shown to be true of favoritism, sexual harassment or any inappropriate intimate contact in the workplace, you definitely want to address that with the appropriate disciplinary action," she added. "But often in these situations, all that's needed is coaching or potentially reassigning employees."

Elaina Loveland is a freelance writer based in northern Virginia.