THE TRY GUYS TRY RESPONDING TO A RELATIONSHIP AT WORK: THE LEGAL IMPLICATIONS OF CONSENSUAL WORKPLACE RELATIONSHIPS
By: Mollie Clark Ahsan, Volume 107 Staff Member
Over the past few months, famous YouTube creators The Try Guys have navigated a worldwide scandal surrounding one of the co-owners of their media company.[1] The scandal highlights the legal ambiguity that exists when workplace relationships take place between a supervisor and subordinate, even when relationships are consensual. However, how the law treats consensual relationships with imbalances of power has far-reaching implications for employees, employers, and the future of workplace relationships.
I. BACKGROUND
The Try Guys have over eight million subscribers on YouTube, a cult Instagram following, and recently debuted their own show on the Food Network.[2] However, photos and rumors swirling online beginning in September of 2022 revealed that owner Ned Fulmer has been engaged in a long-term relationship with one of his subordinates at the company.[3] By the end of the month, public statements released by Ned confirmed the rumors, stating that he had a “consensual workplace relationship.”[4] Following his statement, The Try Guys immediately announced that Ned Fulmer would no longer be working with The Try Guys “[a]s a result of a thorough internal review.”[5] This was particularly shocking to fans who had known Ned as the “Wife Guy” of the troupe, sparking scandal and massive media attention across multiple internet platforms.[6]
The controversy caused by this relationship has brought up significant debate over the legality of Ned’s conduct, and The Try Guys consulted with a team of lawyers to help navigate the crisis from a legal perspective.[7]
II. CONSENSUAL WORKPLACE RELATIONSHIPS IN THE STATUS QUO
Workplace relationships are far from uncommon, with almost one third of American adults reporting that they have been in a relationship with a coworker.[8] Because of this, many employers have policies in place to help employees navigate relationships[9] and in certain situations may require a disclosure of any workplace relationship.[10] This disclosure allows the workplace to take steps to mitigate the risks these relationships may pose.[11] One of the ways this occurs is through the creation of what is known as a “love contract” that states that the parties mutually enter the relationship and acknowledge the sexual harassment policies in place.[12] However this is not a complete solution, both because not all employees decide to disclose a relationship[13] and because the risk avoided is primarily the employers.
A particular challenge is when relationships take place between employers who have unequal power dynamics—at its most extreme, between an executive and a subordinate. Even though an executive may not have a direct supervisory role, “[t]he person at the top of the organization always has the ability to impact someone’s employment in some way, whether it’s direct or indirect . . . .”[14] The Try Guys’ controversy comes on the heels of several high-profile cases involving relationships between powerful men and their subordinates including the President of CNN, Jeff Zucker who engaged in a nondisclosed relationship with the executive vice president; Self Help Guru Tony Robbins with his employee; and award-winning author Junot Díaz with a graduate student while he was teaching at MIT.[15]
There are a number of potential outcomes when these relationships occur. First, the nondisclosure of a relationship itself may violate company policy and as a result the parties may face repercussions based on internal policies.[16] Second, if a relationship at any point becomes nonconsensual, the aggrieved party may find resolution following traditional sexual harassment remedies.[17] Finally, the supervisor may take adverse action against the subordinate, for example by firing them or passing them up for a promotion.[18]
Unfortunately, even if a workplace relationship leads to adverse actions taken against a subordinate, there may not be recourse for the injured party. Even though Sexual Harassment has been interpreted to include discrimination based on “sex” under Title VII of the Civil Rights Act of 1964, this often doesn’t work in the context of a consensual relationship.[19] The dominant view is that even when the subordinate is fired because of a consensual relationship with their supervisor, it is not actionable under Title VII.[20] This stems from the Nelson v. Knight decision in which the Iowa Supreme court argued that the firing of the employee was based on personal feelings regarding a specific person rather than based on a particular gender.[21] This is not unique to Iowa and this reasoning has been used again both in Connecticut and in the Eighth Circuit.[22] These decisions belie judgements about consensual workplace relationships and places the consequences squarely on the shoulders of the subordinate. In many ways this case law perpetuates the idea “that persons of authority in the corporate workforce cannot be held accountable for their sexual desires while subordinates have to monitor and control their bosses’ urges” and ensure that “if these urges become unmanageable the subordinates can legally be fired.”[23]
III. WHAT WE CAN LEARN FROM THE TRY GUYS
In light of the weaknesses in existing law to protect subordinates, employers should expand internal policies related to inter-employee relationships when there are imbalances of power. While large corporations have used internal guidelines to navigate the difficulties of these relationships and reduce the harm to impacted parties, smaller companies often lack the same tools.[24] Without remedies under law, these failures place the impacts of imbalances of power on subordinates.[25]
The Try Guys’ reaction as a company of only two dozen employees[26] demonstrates that a strong internal process, even after the fact, can allow a workplace to promptly investigate and address concerning relationships, even if they are consensual and therefore not remedied by law. The Try Guys quickly engaged an internal review that consisted of an intensive three-week investigation by legal and HR experts among other professionals to ensure they address the situation appropriately.[27] While this occurred, the other co-owners removed Ned Fulmer from work activities and began removing him from their content, at times something that was costly for the company.[28] Rather than attempting to sweep this under the rug, the team came forward with statements quickly after rumors began to circulate and have been incredibly transparent throughout the process.[29] In a video titled “what happened.” released on October 3, the three remaining members talked through the timeline of events and highlighted the fact that “the internet has a tendency to be a lot harsher towards women than men,” asking fans to be respectful and kind.[30] Their openness to talking about this experience hopefully acts a precedent for future companies, especially those in the public eye.
Despite the lack of legal protections for those engaged unequal workplace relationships, situations like these highlight the power that internal policies and processes have to mitigate the disproportionate harm suffered by subordinates. The Try Guys’ reaction to Ned Fulmer’s conduct was the model of a quick, decisive, and intentional internal response to a difficult ethical and legal question.
[1] Willy Staley, The Try Guys and the Prison of Online Fame, N.Y. Times Mag. (Oct. 25, 2022), https://www.nytimes.com/2022/10/25/magazine/try-guys-internet-fame.html [https://perma.cc/U9P5-DY8Z].
[2] Michele Theil, The Try Guys Built a Hugely Successful YouTube Channel as Uncontroversial Nice Guys. Then Explosive Cheating Rumors Changed Everything, Insider (Oct. 1, 2022), https://www.insider.com/history-the-try-guys-buzzfeed-ned-fulmers-departure-cheating-2022-9 [https://perma.cc/4KQB-BTN5].
[3] Theil, supra note 2(“[O]nline fan communities began to discuss why Ned Fulmer was noticeably missing from the Try Guys’ most recent videos and Instagram posts.”); Emma Nolan, ‘Try Guys’: Ned Fulmer Cheating Scandal Timeline, Newsweek (Oct. 4, 2022), https://www.newsweek.com/try-guys-ned-fulmer-cheating-scandal-timeline-new-video-1748800 [https://perma.cc/F9NJ-G868].
[4] Ned Fulmer (@nedfulmer), Twitter (Sept. 27, 2022), https://twitter.com/nedfulmer/status/1574840236495945728 [https://perma.cc/U4P6-JZJP].
[5] The Try Guys (@tryguys), Twitter (Sept. 27, 2022), https://twitter.com/tryguys/status/1574827249408176128 [https://perma.cc/PW9T-JVWA] (“Ned Fulmer is no longer working with The Try Guys. As a result of a thorough internal review, we do not see a path forward together. We thank you for your support as we navigate this change.”).
[6] Amanda Wicks, SNL Needs to Log Off, Atlantic (Oct. 9, 2022), https://www.theatlantic.com/culture/archive/2022/10/saturday-night-live-try-guys-sketch-internet-extremely-online/671694 [https://perma.cc/PA5P-5XYT]; Nolan supra note 3 (“The affair proved quite shocking to fans as Fulmer, a known “wife guy,” had famously branded himself as a devoted husband and father of two.”); Second Try, Every Time Ned Fulmer Says “My Wife”, YouTube (May 24, 2021), https://youtu.be/u7F46T31Aw0?t=22 (highlighting how often Ned Fulmer talked about his wife as part of his online presence).
[7] Staley, supra note 1(“[The Try] Guys recounted a three-week process, involving ‘employment lawyers, corporate lawyers, H.R., P.R. and more.’”).
[8] Jennifer Betts, Love at Work: 5 Things for Employers to Know, 12 Nat’l L. Rev. (2020) (citing Love at Work: Office Romances Often Go Unreported, SHRM Omnibus Poll Finds, Soc’y Hum. Res. Mgmt. https://www.shrm.org/about-shrm/press-room/press-releases/pages/2019-workplace-romance-research.aspx [https://perma.cc/MP32-MY7L] (last accessed Oct. 28, 2022)).
[9] Id. (“There are a variety of permutations to such policies, and some employers prohibit romantic relationships altogether. Others prohibit only romantic relationships between employees and their supervisors.”).
[10] See NIH Policy Statement: Personal Relationships in the Workplace, Nat’l Inst. Health https://hr.nih.gov/working-nih/civil/nih-policy-statement-personal-relationships-workplace [https://perma.cc/TC44-6NYQ] (last accessed Oct. 28, 2022) (explaining its policy in regards to workplace relationships between those with unequal power that requires disclosure and remediation steps).
[11] Barrie Gross, Workplace Romances: Understanding the Potential Risks for Employers, AllBusiness, https://www.allbusiness.com/workplace-romances-potential-risks-for-employers-6630843-1.html#:~:text=Sexual%20harassment%20or%20discrimination%20claims,are%20involved%20in%20the%20romance [https://perma.cc/5S2J-QLKW] (last accessed Nov. 7, 2022) (listing examples of issues employers may face including perceived favoritism, conflicts of interest, and lowered employee morale).
[12] NIH Policy Statement: Personal Relationships in the Workplace, supra note10; Post-Weinstein, These Are the Powerful Men Facing Sexual Harassment Allegations, Glamour (May 18, 2019), https://www.glamour.com/gallery/post-weinstein-these-are-the-powerful-men-facing-sexual-harassment-allegations [https://perma.cc/BNT8-68LC].
[13] Love at Work: Office Romances Often Go Unreported, SHRM Omnibus Poll Finds, Soc’y Hum. Res. Mgmt. https://www.shrm.org/about-shrm/press-room/press-releases/pages/2019-workplace-romance-research.aspx [https://perma.cc/222Z-6T44] (last accessed Oct. 28, 2022) (explaining of those surveyed 28% said they did not disclose their relationship with a coworker to their employer).
[14] Jena McGregor, Jeff Zucker’s Exit Underscores Why Workplace Romance Policies Still Matter, Even After Two Years Of Remote Work, Forbes (Feb. 3, 2022), https://www.forbes.com/sites/jenamcgregor/2022/02/03/jeff-zuckers-exit-underscores-why-workplace-romance-policies-still-matter-even-after-two-years-of-remote-work/?sh=5013c4db7e65 [https://perma.cc/2NAV-E5DS].
[15] Id; Rebecca Klar, Self-help guru Tony Robbins accused of forcing people to drink mystery ‘gross’ liquid, The Hill (June 18, 2019), https://thehill.com/blogs/blog-briefing-room/449107-leaked-video-shows-self-help-guru-tony-robbins-forcing-people-to [https://perma.cc/BT8F-D62E]; Colleen Flaherty, Junot Díaz, Feminism and Ethnicity, Inside Higher Ed (May 29, 2018) https://www.insidehighered.com/news/2018/05/29/rift-among-scholars-over-treatment-junot-d%C3%ADaz-he-faces-harassment-and-misconduct [https://perma.cc/4YGX-TF2Q].
[16] See NIH Policy Statement: Personal Relationships in the Workplace, supra note 10(“A failure to disclose such a relationship may result in disciplinary action.”).
[17] Iris Hentze & Rebecca Tyus, Sexual Harassment in the Workplace, Nat’l Confer. State Legislatures (Aug. 12, 2021), https://www.ncsl.org/research/labor-and-employment/sexual-harassment-in-the-workplace.aspx [https://perma.cc/B9BA-RAQU].
[18] See Kibum Byun, You Can Get Fired for Flirting: Critique of Sex Discrimination Law in the Workplace Through Nelson v. Knight, 21 Cardozo J.L. & Gender 259, 260–61 (2014) (describing the Iowa Supreme Court decision in Nelson v. Knight holding that a supervisor could fire a female employee based on concerns from his wife).
[19] Iris Hentze & Rebecca Tyus, Sexual Harassment in the Workplace, Nat’l Conf. State Legislatures (Aug. 12, 2021), https://www.ncsl.org/research/labor-and-employment/sexual-harassment-in-the-workplace.aspx [https://perma.cc/K3DB-PT23].
[20] Id at 260–61; see Kahn v. Objective Sols., Int’l, 86 F. Supp. 2d 377 (S.D.N.Y. 2000) (holding the termination of an employee due to the ending of relationship did not qualify for relief under Title VII); see also Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64 (Iowa 2013) (holding an employer did not discriminate on the basis of sex when he fired an employee over his wife’s concerns about their relationship).
[21] Supra note 18.
[22] Byun supra note 18; See Nelson., 834 N.W.2d at 68; Bracey v. Ne. Utilities Serv. Co., No. CV126027883S, 2013 WL 6334262 1, 13 (Conn. Super. Ct. 2013); Gender Discrimination—In general, 17 Minn. Prac., Emp. L. & Prac. § 11:6 (4th ed.) (“On a related issue, the Eighth Circuit has held that an employer’s stated reason for termination—that he had to choose between his best employee (with whom the employer had had an affair) and his marriage—was not direct evidence of sex discrimination; instead, that reason merely indicated the employer’s desire to put his wife’s concerns regarding his sexually-charged relationship with the employee to rest.”).
[23] Byun, supra note 18at 261.
[24] Id. at 262.
[25] See supra, Part I.
[26] Madison Malone Kircher, Trying to Explain the Try Guys Drama, N.Y. Times (Sept. 27, 2022), https://www.nytimes.com/2022/09/27/style/the-try-guys.html [https://perma.cc/2A67-DXVG].
[27] Id.
[28] Id.
[29] Id.
[30] Id.