They arrive at work separately. They never touch each other in your presence. Then, as you chair a meeting, you see his eyes seek out hers across the table. She returns his gaze, and suddenly you know. Your senior manager is romantically involved with an accounting clerk.
You don’t want to lose the manager, but the #MeToo media scares you. How do you handle this mess? Would a consensual relationship agreement—known as a love contract—help protect the company against a later sexual harassment claim?
The reality of workplace romance
Some managers would never have an affair with an employee they oversee or any employee at work. Others consider the workplace a dating pond in which to fish. Still others unintentionally fall into a relationship that makes them disregard risks. In a 2018 CareerBuilder survey, 36% of those surveyed said they have dated a co-worker, and 22% have dated their boss. Last year, the Equal Employment Opportunity Commission filed 12,860 charges of sexual harassment against employers.
Given the reality of workplace romance, employers try to minimize their liability by establishing clear anti-harassment policies and providing annual training, improving their procedures for reporting sexual harassment complaints, and promptly and neutrally investigating rumors.
But if anti-harassment training, policies, and stern admonishments don’t prevent romantic relationships at work, what can employers do? Clearly these relationships differ from the unwelcome sexual conduct that creates a hostile work environment. We all know, however, that some relationships which begin as welcome and consensual can change over time, particularly once the relationship ends. A former romantic partner may file a sexual harassment lawsuit against a manager and the company as the emotions that accompany a breakup turn into a workplace problem.
The love contract: preventing sexual harassment claims?
Some employers, seeking to avoid sexual harassment claims and limit their liability, now ask each romantic partner to sign a consensual relationship agreement. Although the terms of any contract must be determined by an attorney, these written agreements may ask each party to:
- Affirm that the relationship is consensual and welcome and has not been made a condition or term of employment.
- Acknowledge that he or she has read and understands the employer’s anti-harassment and anti-discrimination policies and agrees to continue to comply with them.
- Agree not to engage in public displays of affection or other inappropriate conduct in the workplace or at work-related functions.
- Agree to behave professionally toward the person with whom I am in this relationship, even if the relationship ends.
- Agree to immediately inform the company if the relationship ends or becomes harassing.
Love contracts are confidential. They’re not intended to invade the parties’ privacy, but rather to protect the employer and set boundaries to ensure workplace professionalism. Employers cannot require managers or employees to sign contracts, though those who refuse to do so may find their careers impacted.
In addition to the love contract, employers can require that any manager or supervisor involved in a romantic relationship not participate in any discussion or decision related to the subordinate employee’s employment, including job evaluations, assignments or scheduling, compensation, promotion or demotion, and discipline or discharge. Employers may further ask those who sign the love contract to agree that any dispute arising from the relationship or the agreement will be resolved through arbitration.
Despite these safeguards, love contracts don’t offer ironclad protection, particularly since many relationships end in hurt feelings or ill will. Contracts lose all or most of their value if the parties involved don’t live up to their agreements.
Further, the subordinate employee may later claim he or she felt forced to sign the love contract. Given that employers in most states can terminate an employee for any or no reason under employment at will, this can be a legitimate argument. In 2005, Montana Supreme Court ruled that a consensual relationship agreement carried no weight given that the employee who signed it lacked “bargaining power.”
For these reasons, many employers have fraternization policies that forbid romantic relationships between managers and their direct reports and make it clear that on-premises behavior should be professional and respectful of other employees. Unfortunately, these policies have their own drawbacks.
Supplementing anti-fraternization and other policies with love contracts—as long as there’s no contradiction between the policies—can help maintain a professional workplace should relationships between managers and employees end badly.
When managers understand what constitutes inappropriate behavior at work, they can help keep their organization free of sexual misconduct and harassment.