Should an employer have a “Love Contract” for its employees?

Daniels Tredennick Articles

Today, people of all ages tend to exchange valentines with their classmates and coworkers. It is
usually a perfectly innocent way to show appreciation to one’s desk-mates. With the #MeToo
movement in full swing, it might behoove employers to take a second (or third) look at their anti-
harassment policies and decide whether they want to allow office romances.

Perhaps surprisingly, some research has shown that office romances may increase job satisfaction
and office morale. That can come at a high price, however, when romances turn ugly (or were never
a “romance” at all). Here are some facts to keep in mind:

  1. It is impossible to completely prevent office romance. In fact, according to Forbes, more
    than half of employees have engaged in an office romance, and a majority would do it again.
  2. Although the EEOC, the federal agency charged with investigating and prosecuting employment
    discrimination cases, has not seen a substantial rise in sexual-harassment claims in the last 4
    years, despite #MeToo, the total amount of reported settlements has increased from $40.7 million to
    $68.2 million since 2016.
  3. An employer may be held strictly-liable for sexual harassment by a supervisor, regardless of
    whether the company should have known of the harassment or took steps to prevent it, including in
    states like New_York.
  4. Many companies do not have a non-fraternization policy, or their employees simply do not know
    such a policy exists.

So what should employers do?

  1. Do everything in their power to prevent sexual harassment and discrimination. This includes
    having published policies and providing clear avenues for reporting malfeasance.
  2. If an employer goes so far as to forbid office romance, it should be prepared to enforce it
  3. If an employer does not forbid office romance outright, it might consider having a policy that
    requires both parties to acknowledge the relationship and the company’s policies, in
    writing (i.e., sign a “Love Contract”).

While a Love Contract policy will not guarantee compliance by all employees, it might protect the
company from liability in some situations by showing that the employer had no reasonable way to
know about an unreported relationship. But a Love Contract policy would only go so far. For
example, a court would likely not forgive intentional ignorance if an employer is shown to
have turned a blind eye to an obvious, yet unreported, relationship.

As a labor-and-employment attorney—and a former prosecutor—one of my primary concerns, even in a
Love Contract scenario, is when a romantic relationship arises between a supervisor and
subordinate. Like many sexual-harassment claims, a Love Contract scenario may still involve the
difficult determination of whether an office “romance” was actually consensual. Due to the
potential for uneven power dynamics, a subordinate’s signature of a Love Contract could be
meaningless if, for example, the subordinate was pressured by their supervisor to sign against
their will. Imagine that supervisor “A” is illegally manipulating subordinate “B” to engage in a
quid-pro-quo sexual relationship. It is plausible that A would also pressure B to sign a Love
Contract or else face adverse employment consequences. Thus, an employer should first decide
whether such relationships between supervisors and subordinates will be tolerated, and if so, how
it will strive to prevent abuses of power.

For more questions regarding employment harassment and discrimination, or any labor and
employment matter, please contact Paige Taylor Bennett at 713-917-0024.