February 7, 2018
February is often called the “month of love,” and for employers, it may be an appropriate time to consider how to address issues surrounding workplace romance. Regardless of whether employers approve, it is likely inevitable that, at some point, the love bug will bite at work. According to a 2017 survey by CareerBuilder, 41 percent of employees said they had dated a work colleague within the prior year. Another study, by the University of Chicago, revealed that nearly 22 percent of U.S. married couples met at work. But because not every office romance results in wedding bells or fairy tale endings, such relationships create the potential for workplace conflicts, allegations of sexual harassment or retaliation and even litigation. Employers have several options for addressing possible problems in order to avoid legal headaches.
Implementing Policies Addressing Workplace Relationships
In addition to maintaining general policies prohibiting sexual harassment, employers may choose to implement policies outlining permissible and prohibited conduct concerning dating among co-workers. Companies often prohibit relationships between employees in supervisory/subordinate roles, given the inherent issues that arise. Other companies disallow relationships between employees and clients/vendors. Another option is to require employees to inform management of workplace relationships.
Regardless of the specifics, such policies should reference the company's anti-harassment policy and remind employees how to report unwanted conduct. In addition, employers must be diligent in making sure that the policies are enforced fairly and without a disparate impact.
What are Love Contracts?
In what could be considered a second line of defense, some companies may be interested in having employees who are engaged in consensual relationships sign “love contracts.” In essence, a love contract is a written employee consent regarding workplace relationship conduct, and constitutes an individualized non-harassment policy. Love contracts can serve to remind employees of the conduct that is appropriate in the workplace. They also allow employees to acknowledge that a relationship is consensual, and are designed to offer self-serving protections to an employer from future sexual harassment or related claims.
For companies with policies outlining the permissible parameters for workplace relationships, those policies often determine the scope of a love contract. Regardless, the contracts typically contain:
- A restatement of the company’s anti-harassment policy
- An acknowledgement of the employees’ commitment to comply with the anti-harassment policy
- Affirmation that the relationship is voluntary, consensual and welcome
- An agreement to not engage in public displays of affection
- Agreement that there will be no negative impact on work due to the relationship
- A commitment to maintain professionalism even after the relationship ends
- A commitment to inform company of “unwelcomeness” of advances.
Although Love Contracts May Decrease Risk of Sexual Harassment Litigation, They Are Not Cure-Alls
When a workplace romance fails, one employee (often the subordinate employee in the case of a subordinate/supervisor relationship) may claim to have been pressured into the relationship. A love contract, if signed after the relationship began, might help refute such claims, as it provides evidence that the employee making the claim entered the relationship voluntarily. In other words, a love contract could potentially mitigate risk of unlawful harassment liability.
Obtaining a signed love contract from employees engaged in a romantic relationship, however, does not guarantee protection from liability for sexual harassment under Title VII. For one thing, an employee could claim that he or she was pressured into signing the contract in the first instance, especially where the employee is subject to at-will employment.
Moreover, there are a number of practical considerations and challenges with love contracts, including putting the employer in the position of monitoring workplace relationships.
Nevertheless, this does not mean love contracts are necessarily useless. If nothing else, a signed love contract may help maintain a functional office environment in the event that a relationship ends badly.
There are certainly steps employers can take to limit their liability if an office romance goes sour. Although each company’s approach to the issue will look different depending on the organization’s culture and business goals, the best way to avoid workplace conflict related to office romance is to set specific guidelines and clearly communicate them to employees – before relationships begin. Regardless of the approach taken, however, employers must be sure to treat all employees consistently.
Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation.