February 2015 Bar Bulletin
How Romantic: Workplace Love Contracts
By Amy J. Stephson
For some time now, employment lawyers have used a legal document for workplace lovers that's informally called a love contract, or more formally a "Consensual Relationship Agreement." C'mon. Is this really necessary? Unfortunately, yes.
Here is the typical scenario. A high-up leader is having a romantic relationship with a subordinate. It's consensual; they're in love. But it ends ... badly. If the subordinate is the jilted party (or if the breakup was mutual but ugly), the subordinate's sexual harassment charge could look like this:
- It wasn't really consensual. I felt I had to date him/her to keep my job (quid pro quo sexual harassment); and/or
- Since we broke up, I've experienced a hostile work environment and/or retaliation, e.g., the boss doesn't talk to me anymore; I'm not getting the opportunities I did before; my reputation in the workplace is shot; my office was moved to an inferior location, etc.
The superior also could experience a hostile work environment or retaliation if the subordinate starts spreading rumors about the superior, engages in negative behaviors, etc.
So, what's an employer to do to avoid being sued in this type of scenario? Some prohibit all dating between employees. Policies such as this, however, serve mainly to send relationships underground and to provide blackmail opportunities to disgruntled employees who want to get others in trouble.
Some employers prohibit dating between employees who are in the same chain of supervision. This makes more sense and is more common. However, if no one tells the employer about the relationship, this is not too helpful.
To address this, some policies allow, but require disclosure of, a supervisor-subordinate relationship. This can be useful so long as the policy makes clear what type of relationship needs to be disclosed. A one-night stand? A relationship in the early, very ambiguous stage? "Friends with benefits?" Yeah, it gets complicated.
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