posted on Sunday, July 15, 2007 2:17 PM
by
Lou Michels
Contracted to Love
There was a recent flurry in the mainstream media several weeks ago about so-called "love contracts" and their usefulness to employers. For the uninitiated, a love contract is a formal legal document that is signed by two employees indicating, at a minimum, that they are engaged in a voluntary and consensual romantic relationship and that they are aware of the employer's sexual harassment policy and its requirements for reporting a charge of sexual harassment or retaliation.
Some employers require these documents, sometimes known as "consensual relationship agreements" as a condition of continued employment for employees engaged in romantic relationships with other employees. The theory is that by disclosing the voluntary nature of the relationship, and the awareness of a means to remedy sexual harassment claims, the employer is somehow more protected from a later discrimination claim when the relationship goes bad.
On a theoretical level, I guess the love contract isn't necessarily a bad idea. But as a practical matter, I don't think it helps very much. For one thing, my experience is that the people who really need love contracts, usually people engaged in relationships that the employer would ban immediately if it was aware of them (think president of the company and a direct reporting subordinate), aren't willing to sign these documents because of the disclosure requirement. For another, given the nature of juries to believe even the most outlandish claims of intimidation, the limited protections that a love contract provides are easily vitiated by a claim that the victim was coerced into signing the document, or coerced into not reporting horrible conduct, or some combination of the two. And finally, although some employment lawyers believe that love contracts can help defuse problems arising in deteriorated superior--subordinate romantic relationships, I think the protection is illusory. Superior--subordinate dating relationships are fraught with problems that arise as much from the perception of other employees as from the participants in the relationship. Claims of favoritism, misconduct, and other juicy activities frequently run rampant through the workforce when there is an open superior--subordinate relationship at work. These claims frequently are cited as evidence of a hostile work environment, and in my experience are inevitable whether there is a document in place or not.
So before plunking down hard-earned human resource dollars to have someone draft a love contract for two moon-struck managers, think about what you're trying to protect, and whether it might be more effective to move one of them, or otherwise alter the employment relationship.