For lawyers defending corporate clients against sexual harassment complaints, it's a classic story. Two employees begin an office romance, and after the initial fireworks the romance sours. Recriminations ensue. The subordinate-who may or may not report directly to his or her lover-claims to have been pressured into a relationship that was never consensual. For companies, fending off a single contentious complaint can add up to hundreds of thousands of dollars in legal fees, not to mention the damage to office morale. To nip such situations in the bud, employers are increasingly turning to consensual relationship agreements, a.k.a. love contracts.
Most companies once had rigid rules about intraoffice dating. But as corporate cultures have become more informal and working hours have gotten longer, office hookups are no longer the taboo they once were. Forty-six percent of employees polled in a recent survey by the careers site Vault.com admitted to having had an office romance. An additional 13 percent said they hadn't but were willing. And 15 percent said they had dated a boss, while 15 percent said they had dated a subordinate. If and when all those romances tank, love contracts "protect the company from harassment claims … and can assure that relationships won't interfere with job performance," says Ashley Brightwell, an employment attorney in the Atlanta office of the law firm Alston and Bird.
Employers are realizing the need to protect themselves, says Garry Mathiason, chair of the corporate compliance group at the law firm Littler Mendelson in San Francisco. "The probability of a couple dating, falling in love, and living happily ever after is low," says Mathiason, who helped draft the consensual relationship agreement more than 10 years ago. While no one has tracked the demand for such documents since, Mathiason says he's noted a definite uptick; he's written 20 in the last two years alone, more than he prepared in the previous eight.
According to the Equal Employment Opportunity Commission, there's still a need for such documents. While sexual harassment complaints have dropped in the last 10 years, they've started creeping back up, from 12,025 in 2006 to 12,510 last year. How many of those complaints started as a consensual office romance isn't clear, but even the prospect of dealing with a harassment suit is the reason Jim McDonald says he's seen a "huge increase" in his labor law practice at Fisher and Phillips in Irvine, Calif. In the last year McDonald, a managing partner, says he's drafted nearly two dozen agreements, far more than in previous years.
How do they work? Consensual relationship agreements are customized for a specific situation, but they are typically drawn up when a supervisor is dating a subordinate or when one of two co-workers is promoted above the other. In some cases employees will disclose their relationship to their employers. However, more often than not it's management that will call in a suspected couple to discuss the situation. According to Mathiason, love contracts are always signed voluntarily, and they often state that either party will seek arbitration rather than file a harassment grievance if the relationship sours.
Because of the privacy issues involved and concerns that they may be perceived as intrusive, companies rarely admit to using love contracts and prohibit employees from discussing them. Christine Barney, the CEO and managing partner of RBB, a Miami-based public relations agency, is one of the few executives who will openly admit to signing a love contract herself. She says she has encouraged others in the Miami office of her former employer, Weber Shandwick, a global public relations firm, to do the same. (Weber Shandwick would not verify using consensual relationship agreements and declined NEWSWEEK's requests to comment further.)
Barney says that back in 2000, when she was about to embark on a relationship with Robert Gill (a Weber employee whom she married in 2003), they consulted their lawyers on how to proceed. Although Gill was an executive, Barney was a general manager, and his superior, so they wanted everything to "go by the book." They were advised by the company's attorneys that signing a consensual relationship agreement was the best way to go. "It was a very high school moment and somewhat uncomfortable," she recalls. "We sat in a room and read the contract that asked if either of us was being harassed. It was awkward, but we did it to set an example." Barney says she would not hesitate to use the contracts if needed at RBB, but with only 28 employees (26 of whom are women), so far it hasn't been necessary. She sees love contracts as an egalitarian way for employees to know that there are rules of conduct to follow.
Not everyone agrees. Consensual relationship agreements are just another case of "overlawyering," says Mark Toth, the chief legal officer for Manpower North America, an outplacement and employment services company based in Milwaukee. "It forces [employers] to become the love police, consistently enforcing who's dating whom," Toth says. And he's not sure if such contracts will necessarily protect companies from litigation. A subordinate signing a love contract might claim that he or she signed under duress or that harassment began after the contract was signed.
A consensual relationship agreement is no guarantee, McDonald concedes. But, he says, having a contract should give the organization a strong defense. "It's in the true interest of both parties," he says. "It's an important document that can prevent finger-pointing and reconcile opposing recollections."