Vol. 6, No. 12
December 1998

WORKPLACE ROMANCE

Labor of love -- Part I

by Jennifer J. Hamilton

Depending, of course, on your definition of "great," the Clinton/Lewinsky scandal may be the greatest tale of workplace romance to date. But it certainly isn't the first of its kind. Statistics show that adults aged 20 to 50 are most likely to find their mate at work. And while a workplace romance may result in a lifelong marriage, the reality is that all too often it ends badly.

For better or for worse, handling workplace romances may become a full-time job for an employer. In the first of a two-part series, we address the issues you face as you wade through affairs of the heart to get to the business at hand.

Workplace romance woes

Despite their allure, workplace romances are dangerous for all those involved. Failed workplace romances may account for up to half of all sexual harassment claims. A party to a consensual relationship, for instance, may later claim that the relationship was never truly consensual or that although the relationship began with good intentions, it continued only because he or she feared getting fired. Or an employee may argue that a jilted lover made employment decisions based on unrequited love, not on the employee's merit. Even a "successful" workplace relationship may cause employment headaches if the couple's colleagues cry favoritism or engage in unproductive and often destructive gossip.

In July, the U.S. Supreme Court upped the ante with regard to sexual harassment claims. Now you may be held liable for sexual harassment even when the victim suffered no tangible job detriment and you were not informed of the problem. Based on the Court's ruling, you may dodge liability only if you tried to correct the situation by, for instance, providing a complaint procedure, and the victim neither cooperated nor suffered any harm.

Complaints of sexual harassment in the workplace have more than doubled in the past six years, according to statistics from the Equal Employment Opportunity Commission. Statistics also show that the average judgment in a successful harassment suit is around $250,000, excluding legal costs. Given recent changes in the law and the astronomical costs of harassment litigation, you may no longer be able to afford to ignore your employees' indiscretions.

'Love contracts' instead of love letters

Employers, worried that an office romance may turn ugly, are getting creative. Some employers dealing with workplace romances are implementing a "love contract," or "consensual relationship agreement." Stated briefly, a "love contract" is an informed consent agreement signed by each party that acknowledges the potential for sexual harassment in the workplace and clearly states that the relationship is consensual.

The agreement stipulates that the employees' desire to undertake a consensual social relationship is welcome, voluntary, and mutual and is neither business-related nor a violation of the company's antiharassment policy. The agreement also specifies that both parties are free to end the relationship at any time without an adverse effect on their jobs.

The love contract is intended to be used by an employer that becomes aware of a "social" relationship between its employees. In the best-case scenario, you would approach the parties individually, discuss the company's sexual harassment policy, and ask if the relationship is consensual. If the employee answers yes, you would then present him or her with the consent agreement and request that the employee sign. Again, in the best-case scenario, the employee would sign the agreement and that would be the company's last involvement in the employees' affair.

Ah, but if only your job was that easy. While reactions to the love contract are mixed, even supporters agree that it is not necessarily uncomplicated. The love contract involves some very substantial risks. Below are some of the advantages and disadvantages for employers to consider before using a love contract.

Unintended consequences

Some employers see love contracts as a useful way for consenting adults to agree to rules before the game starts, a reflection of our '90s mentality. Others regard the contracts as unnecessary legal overkill. Love them or hate them, serious questions remain regarding the effectiveness of the love contract.

First, these types of consent agreements do not appear to have been tested in any court and may not even be legally binding. Second, some opponents of the love contract argue that they are inherently coercive; that is, a party who is pressured into having an affair may also be pressured into signing a contract.

Finally, even assuming that the parties do sign in good faith, your continuing obligation is unclear. Now that you have notice of the affair, do you have to update the waiver to ensure that circumstances have not changed?

The love contract may also create company morale problems and potential liability. An employee may challenge the contract as an unnecessary invasion of privacy, especially if the employee has an interest in keeping the affair private. For instance, a gay or lesbian employee or an employee engaged in an extramarital affair may not want a written memorial of his or her choices. Further, an employer often finds out about an office affair through other employees' reports. An employer that confronts an employee about the report may invite a defamation or invasion of privacy claim.

Notwithstanding the potential pitfalls in a love contract, it may serve as a useful employment tool. If nothing else, it ensures that everyone involved in the affair is aware of your harassment policy and understands what to do if the relationship becomes a problem. While the contract may not protect you from being sued, it is excellent evidence that you have a harassment policy of which the employee knew.

Also, even if a love contract does not absolve you of all liability, it may dissuade a disgruntled lover from suing. The mere knowledge that he or she signed a contract attesting to the consensual nature of the affair may take some of the wind out of an angry employee's sails. It is unlikely, however, that a love contract will protect you any better than a well-enforced sexual harassment policy.

Final thoughts

If you are interested in using a "love contract," be aware that you may not be able to do much more than ask your employees to sign. You may create a discrimination claim by conditioning an employee's continued employment on signing such a contract. Given the complexity of the issues discussed above, we caution you to seek legal counsel before attempting to use a love contract.

Next month, we will discuss the advantages and disadvantages of employment policies that restrict or prohibit employees from dating one another.

Copyright 1998 M. Lee Smith Publishers LLC

CONNECTICUT EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather seeks to provide information about current developments in Connecticut law. It is provided as a means of conveying accurate, but general, information. It is not intended as legal advice, which must always be tailored to individual needs and particular circumstances. Questions about individual problems should be addressed to the attorney of your choice. The State Bar of Connecticut does not designate attorneys as board certified in employment, and we do not claim certification in any listed area.