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May a Senate Aide Date the Office’s Senior Staffer?

Q: I am a Senate staffer and, as much as I hate to admit it, I think I have developed a full-fledged crush on our office’s chief of staff. While he and I have always casually flirted with one another, it has recently escalated to the point that I am now considering pursuing a relationship with him. I sense that the feelings are mutual. Before going for it, I wanted to make sure that the rules allow a staffer to date his or her supervisor. Do the Senate ethics rules prohibit us from dating?

[IMGCAP(1)]A: In recent years, the Senate ethics rules have intruded further and further into the personal lives of both Senators and staffers. For example, you may not accept gifts worth more than $50 from anyone, you may not accept any gifts from lobbyists, and at certain events you can only eat hors d’oeuvres. The restrictions have become so great that some staffers might wonder whether there is any part of their lives that the rules do not address. Well, here is one. As intrusive as the ethics rules can be, they do not tell staffers who they may or may not date. No Senate ethics rule prohibits one staffer from dating another.

Unfortunately, this doesn’t mean you are home free, or that intraoffice relationships are without risk. In fact, there are good reasons for staffers who are either in such a relationship or considering one to proceed with caution. This is particularly true in circumstances like yours where one side of the relationship holds a higher-ranking position than the other. In such a situation, there are a few issues to keep in mind.

The first is Senate Rule 42, which covers employment practices. Rule 42 prohibits discrimination on the basis of race, color, religion, sex, national origin, age or state of physical handicap. Among other things, Rule 42 forbids what has come to be known as sexual harassment in the workplace.

You may be wondering what on earth a rule against sexual harassment has to do with your situation. And there is a good chance that the answer is nothing at all. After all, sexual harassment is broadly defined as unwelcome sexual conduct that affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile or offensive work environment. Here, it appears there is nothing unwelcome about the conduct in question at all.

But, regardless of how rosy things might look now, workplace relationships do not always end well, and they can even lead to sexual harassment claims where you would never expect them. For starters, how would your relationship affect others in your office? I presume that your chief of staff doesn’t do anything that might be interpreted as sexual harassment of his staffers. But, even so, there is a risk that staffers might claim that they were treated less favorably because they were not dating the chief of staff, or because they had previously turned down his advances. Moreover, if you and your chief of staff were to date for a while and then you called it off, how would that affect your own work experience? What if he were to make advances even after they were no longer wanted? These questions may seem trivial now, but answering them in some circumstances can lead to legal proceedings.

This raises the second issue to consider. Sexual harassment in Senate offices is prohibited not only by Rule 42, but also by the Congressional Accountability Act of 1995. That act applies Title VII of the Civil Rights Act to all Congressional employees and gives jurisdiction over discrimination claims under that act to the Office of Compliance. This means sexual harassment claims in the Senate can lead to actions by no less than three different bodies: the Senate Ethics Committee (which administers Rule 42), the Office of Compliance (which administers provisions of the Congressional Accountability Act) and federal courts (which preside generally over Title VII sexual harassment claims).

Given these risks, some Senate offices impose their own restrictions on intraoffice romances — which brings me to the last thing you should consider before pursuing the relationship: Your office’s internal employment policy or manual. Historically, the Senate has left most employment policies to the discretion of each Senate office. While I cannot speak to your particular office, some offices have adopted “anti-fraternization— policies forbidding certain types of intraoffice romances.

For example, one Senate office’s policy explicitly provides that “romantic relationships between a supervisor and … subordinate are not permitted.— This prohibition, the office’s manual says, is based on the risks of “disruption of the Office’s operations— and violations of the sexual harassment policy.

Under the terms of the office’s policy, a supervisor is defined quite broadly to include “anyone who can affect— the other employee’s “pay or performance reviews, or can give an employee any assignment, or can impact any other term or condition of the person’s employment.— If a relationship “develops— between a supervisor and subordinate, the policy requires that one of them must either resign or transfer to a position where the supervisor-subordinate position no longer exists.

Of course, I have no way of knowing if your office has a similar policy. But you’d better check. Yours could be a case of forbidden, or at least tainted, love.

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.