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Love Contracts

Love Contracts Under #MeToo

Does your human resources department deal with love contracts? If you think this is a crazy question, then you probably haven’t gone down this road before. But these are real legal documents that some companies use when co-workers become involved in romantic relationships. Love contracts (or office relationship contracts) have never been overly commonplace. And the #MeToo movement and the related heightened attention on workplace sexual harassment issues, perhaps ironically, may be revealing even more reason not to use them.

What Are Love Contracts?

You might sooner think of a prenuptial agreement than the type of contract we’re talking about here. But these love contracts are designed primarily to protect employers, not the people who are, well, in love! However, the couple might receive some benefit as well–the ability to continue their relationship without forfeiting their jobs.

There is no straightforward legal definition of a “love contract.” But they usually address these items (perhaps among others):

  • Acknowledgment of a consensual romantic relationship
  • Reiteration of the company’s equal opportunity and anti-harassment policies
  • Guidelines for appropriate workplace behavior
  • Identification of the reporting relationship (if any) between the employees and any potential conflicts of interest
  • Any change in work circumstances necessary to enable the relationship to continue without impairing work performance
  • Recognition that romantic relationships don’t always work out
  • Agreement that the romantic relationship (or its dissolution) does not constitute a violation of company harassment policies

The terms of one of these contracts are usually not negotiable. The company provides the document to the employees. If they choose to sign, then they continue employment and, as they desire, their personal relationship. If either employee refuses to sign, then the company takes alternative action. This could include either re-assigning or possibly terminating one or both of the employees.

Do Love Contracts Work?

One could ask this question from many different perspectives. However, the answer would always be about the same: Maybe, in some respects, but there are no guarantees.

1. Do they encourage employees to disclose workplace romances?

Sometimes, but not always. Dating and sex are topics that most employees don’t want to talk about with HR in the first place. The prospect of possibly being asked to sign a love contract probably further diminishes the incentive to report.

Then you add in the fact that some meaningful percentage of extra-workplace relationships between co-workers are extramarital affairs. Hardly anyone will want to disclose those to their employer, much less put it in writing!

2. Do they ensure that relationships don’t cause trouble at work?

Casual dating among co-workers doesn’t have to be a big problem, and probably isn’t in many cases. The same can be true of more established relationships. But, in either situation, there’s always the reasonable possibility that at least one person will end up upset.

Keep in mind too that relationships don’t always affect just two people. Third parties can also become involved. What of the other employee who is attracted to one of the employees in a workplace relationship? People who were formally involved with one of them? Current or former spouses? For the most part, these “outsiders” won’t be part of a love contract, but could still take offense or otherwise become disgruntled about the relationships or how it carries over into the workplace.

3. Do they prevent sexual harassment claims?

Present data on that question would be hard. But love contracts likely have prevented sexual harassment claims here and there. In different instances, either because they helped employees behave appropriately regarding their relationship or simply discouraged one of the employees from making a claim in light of the existing agreement.

One could also guess that love contracts have, at times, prompted sexual harassment (or sex discrimination) claims. If nothing else, raising the legal significance of the relationship by requiring a contract could make some employees more likely to seek formal recourse when the love dies.

Legally, it is unlikely that the existence of a love contract would automatically “defeat” an employee’s sexual harassment claim. Employees can’t prospectively waive these claims as a formal matter. However, the acknowledgment of the consensual relationship could help the employer overcome some allegations (i.e., that the relationship wasn’t consensual).

As suggested above, love contracts are especially unlikely to prevent or disprove harassment or discrimination claims by employees outside of the relationship. If a co-worker claims he was passed over for a promotion that went to one of the love contract signees because that person was in a relationship with a decisionmaker (the other love contract signee), then the love contract would probably be irrelevant as to that claim.

How Does #MeToo Enter the Equation?

From a societal standpoint, it probably shouldn’t. Workplace sexual harassment has always been inappropriate, and it has been illegal for many years.

At the same time, most companies that have asked employees to sign love contracts probably had good intentions. They weren’t prioritizing hiding sexual harassment. They were trying to make sure that nothing unwelcome was occurring in the first place. HR wouldn’t (in all but the worst run organizations) put undue pressure on an employee to sign an agreement saying they were having a consensual sexual relationship if the employee didn’t believe at the time that it was consensual. If the employee instead said they felt subject to harassment, good companies would have promptly investigated the claim and taken appropriate corrective action.

The positive impact of love contracts on employees has been that they were able to continue to pursue their hearts and their careers (potentially) without interruption. Without love contracts, employers might have (lawfully) forced the employees to choose between their relationship or their jobs.

Now, of course, sexual harassment is at the forefront of media and business attention. That’s good in the sense of hopefully reducing the incidence of harassment. But it does risk increased litigation, which imposes costs on employers.

All told, anyone faced with a workplace romantic relationship these days should be on high alert. Again, no one (whose opinion matters) wants sexual harassment to occur. We don’t want employees to be disadvantaged because they didn’t accept romantic or sexual advances or because co-workers did. At the same time, few employees want to go to HR and put this target on their backs. And, frankly, probably fewer and fewer human resources department or managers want to hear about these relationships because of how complex the implications can be. Sure, they’ll try to do the right thing as problems arise, but that’s different than proactively asking people to sign legal documents related to their romantic, probably sexual, activities.

What’s the Alternative to Love Contracts?

Let’s leave open the possibility love contracts might still work well in some situations. Use them thoughtfully, on a case-by-case basis, though consistent with company policies. Get legal advice and don’t assume they’ll solve all your problems.

As an alternative, many companies have anti-fraternization policies. The limits of these policies vary. Some prohibit any dating or romantic relationships between employees. Others only restrict relationships between employees in the same departments or within the same reporting structure.

Unfortunately, these fraternization or dating policies share many of the same side-effects as love contracts. Principal among them is that they encourage employees to hide their relationships at work. On the one hand, this could be good to the extent that it prevents the relationship from directly affecting the workplace. On the other hand, it can create animosity among employees who do find out about relationships.

Again, it’s not fair to universally condemn or endorse anti-fraternization policies. What works in one workplace might not work in another. But there is one policy that is paramount for all organizations: the anti-harassment policy.

All employers should have written anti-harassment policies covering sexual harassment and all other categories protected by applicable laws (which may vary from state to state). Whatever preventative measures might be in place, employers must take all allegations of sexual harassment seriously, investigate promptly, and take appropriate action.

 

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