There has been so much written lately both in gossip columns and legal (and standard) news about sex harassment in the workplace. Employers are understandably quite nervous about dating among co-workers. Can it lead to lawsuits? When does it deteriorate to sex harassment? What should an employer do?

LAYER OF LEGAL PROTECTION: Workplace dating is a fact of life. However, if two co-workers are dating, the employer must be sure that it’s consensual. If it turns into a situation where it’s not consensual, then the employer needs to be aware of the potential for illegal sexual harassment.

Employers sometimes prohibit romantic relationships between employees in supervisory/subordinate positions, given the inherent issues that arise when one romantic partner supervises the other. Another option is to require employees (via strict policies) to inform management of any workplace romances.

Some employers use “love contracts” (also called “consensual relationship agreements”) in order to try to create a layer of legal protection from sex harassment lawsuits that might arise. Documenting the nature of the romantic relationship can offer some protection against possible claims of harassment. A love contract can ideally set ground rules for office behavior and reinforce the Company’s sexual harassment policies.

Regardless of the exact details of the love contract, such a contract should always reference the company’s anti-harassment policy (and remind employees exactly how to complain and how to report unwanted sexual or romantic conduct). In addition, employers should be diligent in making sure their sex harassment policies are enforced fairly and promptly across the workforce.

WHAT IS IN A LOVE CONTRACT: Love contracts usually include:

• A summary of the Company’s sex harassment policy.
• An acknowledgement of the employees’ intentions to comply with the Company’s sex harassment policy.
• Affirmations that the romantic relationship is voluntary, consensual, and welcome.
• An agreement to not engage in public displays of affection in the workplace.
• An agreement that there will be no negative impact on work due to the romantic relationship.
• An agreement to maintain professionalism even after the romantic relationship ends, if it should go sour, and
• A commitment to immediately complain to the employer of “unwelcome” advances, should there be any.
• The love contract should advise the “workplace lovers” that any favoritism towards each other could be a violation of your policies and would be considered a conflict of interest.

Many love contracts include the following two provisions:

1. The agreement is confidential and intended not to invade employees’ privacy but to affirm that both employees have received and agree to comply with the agreement.
2. The employees may consult with an attorney before signing the agreement.

LOVE CONTRACT MIGHT HELP REFUTE CLAIMS THAT EMPLOYEE WAS PRESSURED: When and if a workplace romance ends, one employee may claim to have been pressured into the romantic relationship in the first place. A love contract, if signed after the relationship began, might help refute such unfortunate claims, as it provides written 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 for the employer.

EMPLOYEE COULD CLAIM HE/SHE WAS PRESSURED TO SIGN: Receiving a signed love contract from employees engaged in a romantic relationship in the workplace, however, does not guarantee protection for the employer from liability for sexual harassment under Title VII. For one thing, an employee could claim that he or she was pressured by the employer into signing the love contract in the first instance, especially where the employee is subject to at-will employment.

MUST HAVE STRONG SEXUAL HARASSMENT POLICY AND APPROPRIATE TRAINING: While documenting the consensual nature of a relationship through an agreement like a love contract can prove useful, it’s no substitute for having a strong sexual harassment policy, appropriate sexual harassment training, and a sound and prompt enforcement program. Love contracts are an additional tool that employers can use to prevent claims of sexual harassment.

NOT EVERYONE IS A FAN OF LOVE CONTRACTS: Some employment lawyers argue that employers should not get involved in the private lives of employees. Clearly, a love contract is not a substitute for good management judgment. Such agreements don’t eliminate all risks associated with office romances. Companies still have an obligation to make sure employees are not subject to a hostile work environment. The company still has an obligation to investigate complaints of sexual harassment.

SLIPPERY SLOPE: Using love contracts can be a “slippery slope” for employers. When you put in writing highly personal things in which reasonable people can differ, you may actually be creating management problems. Many personal relationships are hard to define. In the final analysis, it is for the employer to decide if this tool of “love contracts” will be helpful or will prove to be the stimulus for even more management problems. This is a controversial subject and each company must decide for itself if love contracts will be helpful as a management tool.

For assistance with sexual harassment issues, love contracts, investigations and training, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.