The latest trend in fending off sexual harassment suits isa "love contract." Teresa Butler, managing partner in the Atlanta office ofemployment law firm Littler Mendelson, explains.
Can you talk about the "love contract" andhow it works?
It’s really only intended for higher-level executives. This isn’t something weadvise employers to put in their handbooks, and we don’t recommend that allsupervisors issue them to subordinates. We talk about this for CEOs and officers,top-level executives, and maybe directors; that’s a judgment call for the company.It’s basically for people who have broad power in the workplace -- not the averagefirst-level supervisor.
What is included in the contract?
The love contract does three things. First, it restates the voluntary nature ofthe relationship. The CEO, or whoever is in this situation, issues the agreement to asubordinate employee, basically explaining to the individual, "I want to have thisrelationship with you. My understanding is you want to have this relationship with me. ButI’m concerned that over time you might believe that the continuation of thisrelationship -- even though you don’t want it anymore -- might be necessary for youto be successful here. As you know, we have a harassment policy, and I want you tounderstand that I’m aware of that policy and would never allow [the end of ourrelationship] to influence my decision making with regard to your employment." So theagreement is actually a formal contract. It restates the voluntary nature of therelationship.
What else should a love contract do?
Secondly, it affirms that the parties will use the company’s sexual harassmentpolicies if a problem arises, and it confirms the existence of those policies and[procedures]. It also states that if the policies aren’t used, it’s fair toassume there isn’t a problem. And thirdly, the parties agree if work-related disputesarise, they’ll resolve their differences using alternative dispute resolution (ADR)rather than resorting to the courts. Some might want to use that third piece and somemight not, but we recommend ADR from a legal standpoint.
How are these contracts useful?
Often these relationships go bad at some point; one party wants to end it and theother doesn’t. And then there’s retaliatory conduct by the other, sometimes bythe subordinate in the form of a sexual harassment complaint. So this contract is a methodfor the top-level executives to just say out loud what is actually the case. It’sassurance for the company and the individuals that everybody understands what the rulesare.
How legally defensible is a love contract?
The first response we typically hear, especially from lawyers, is: How could this possiblybe enforceable? The idea is this person can always come back and say this was coerced,that he or she was forced to sign this agreement. That’s a risk you take with anycontractual relationship because an employee is always in a subordinate role to theemployer. If you take that to its logical end, you might as well say you could never havean enforceable contract with an employee.
So can they raise that issue?
Of course they can. But are you better off with the contract than without it? Yes. Ithink it’s a pretty tough argument for an individual who signs this agreement to saythat he or she was coerced into having this consensual relationship that you’ll beable to [prove] the person had. There’s usually evidence in these cases of aconsensual relationship: You’ve got birthday cards, receipts for dinner, letters andother types of communications that the subordinate employee has clearly engaged in on avoluntary basis.
The information contained inthis article is intended to provide useful information on the topic covered,but should not be construed as legal advice or a legal opinion.
Workforce, March1999, Vol. 78, No. 3, pp. 106-108.