Employment law lessons from “Ted Lasso”

If you've not yet watched episode 8 (Man City) of the current second season of Apple TV+'s Ted Lasso and you don't want to be spoiled, now would be a good time to click the back button on your browser or close your email. Good? Okay. No grumbling; you've been warned.

A couple of weeks ago Sam Obisanya, a Richmond AFC player, was revealed as team owner Rebecca Welton's secret crush on the show's anonymous dating app (and new team sponsor), Bantr. In this week's episode, Sam and Rebecca (not knowing the other's identity) agreed to meet IRL. Upon their discovery at the restaurant rendez-vous, Rebecca, being Sam's boss, immediately applied the breaks.

Rebecca: No. Sam. We can't... I'm your boss. No. No. You are way too young. I mean, you're what, like, 24?
Sam: I'm... I'm 21.
Rebecca: Oh, my God. I'm a pedophile. I feel... I've groomed you. All these messages. I was grooming you!
Sam: You didn't groom me, okay? We didn't know who we were.
Rebecca: Okay, but... but now we do, and this is not happening.

But, after seeing Sam's press interview explaining his reaction to the team's drubbing at the hands of Man City in the FA Cup semis ("We tried. We gave it everything we had and for me that is okay. Because what's worse is not to try at all. To try is scary because you can end up losing a lot. You have to put your heart out there. Otherwise what's the point?") Rebecca decided to go for it with Sam.

So, heading into this season's final four episodes, we have quite the meaty storyline of the team's owner (the boss) dating a player (one of her employees) with huge employment law implications.

So let's discuss. What are the potential pitfalls of the boss dating an employee?

First and foremost, there is nothing per se unlawful with this arrangement. In fact, just a few weeks ago the 9th Circuit Court of Appeals joined seven of its sister circuit courts in concluding that a boss showing workplace favoritism towards his or her romantic partner does not equate to unlawful sex discrimination. That holding, however, does not mean that the relationship is without risk, legal or otherwise. there's a lot that can (and sometimes does) go wrong when the boss gets romantically involved with a subordinate, including—

Conflicts of interest.
Extortion and blackmail attempts.
Uncomfortable conversations with HR and company attorneys explaining your love life.
Have to describe your employee’s private affairs in a deposition or, worse, to a jury.
Office gossip.
The loss of respect from co-workers and management.
Harassment and retaliation lawsuits when someone other than an employee's paramour gets passed over for a promotion, fired, or otherwise thinks you are playing favorites.
Harassment or retaliation lawsuits by a jilted partner when the relationship goes south.

None of this means that these relationships should never happen; it just means that employers need to understand that permitting these workplace romances amplifies the risk of claims of discrimination, harassment, retaliation, and otherwise, all of which is heightened when the parties involved are a boss/manager/supervisor and his or her subordinate.

The question, then, isn't whether these relationships are illegal (they're not), but how much risk you, as an employer, want to assume in the event a relationships sours, or other employees feels shunned or mistreated as a result. Your options?

Ban them outright?
Ban them only between a manager/supervisor and his/her subordinate?
Permit them with a signed agreement (the "love contract")?
Do nothing and permit them across the board?

In the case of direct reports, the best and recommended practice is to avoid any romantic relationships. While the 9th Circuit will tell you they are not inherently illegal, I've just seen many too many examples of what can go wrong when those relationships end (as most usually do).

Otherwise, I'm not here to tell you that you should forbid employees from dating each other. Far from it. The heart is going to go where the heart wants to go. In other words, if your employees want to date, they will — with or without a policy forbidding their relationships and dalliances. Instead, look at workplace romances as an opportunity to educate your employees about the ins and outs of your harassment, discrimination, and retaliation policies. Train your employees about what is and is not appropriate (and inappropriate) workplace conduct between the sexes. Focusing on conduct (and misconduct) instead of the relationships will provide your employees the necessary tools to avoid the types of problems that can arise, and which, in turn, will help your organization avoid the litigation that those problems often cause.

As for Rebecca and Sam, I cannot wait to see how this all plays out, both as an employment lawyer and a massive fan of everything Ted Lasso.