All you need is love—and a contract?
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Valentine’s Day is a day for lovers. However, when those lovers are co-workers, things can get complicated—as evidenced by the recent news of another executive separating from employment because of a consensual workplace relationship, CNN President Jeff Zucker.
For labor and employment lawyers and their clients, this may be an opportune time to revisit their workplace relationship policies. The always intriguing but rather uncommon “love contract” can be one tool for employers to consider in enforcing such policies.
Years ago, as a newly minted associate at a law firm, a partner asked me to draft a “love contract” for a client to consider. I thought for sure she was joking. When I realized it was not indeed a joke, a million questions came to mind: Is this some sort of “hush-hush” human resources practice I had never heard of? How in the world can such a document be helpful or even legally enforceable? Is this really what I went to law school for?
In my 11 years of practice, I have drafted exactly one love contract. Nonetheless, the concept has always intrigued me and, in light of #MeToo and consensual workplace relationships in the news, the concept is worth rekindling.
What is a ‘love contract?’
A love contract, sometimes known as the less inspiring “consensual relationship agreement,” is an agreement signed by employees involved in a romantic or sexual relationship. Employers use such agreements to ward off workplace issues, including sexual harassment claims.
While the contours of such agreements vary, at the heart of a love contract are the employees’ representations that the relationship is entirely consensual and voluntary, and the parties understand and agree to abide by the company’s sexual harassment policies. Other bells and whistles might include:
• Requirements that the employees notify human resources if the relationship sours or ends.
• Representations that the relationship will not impact job performance.
• Acknowledgments of other related employer policies (e.g., anti-retaliation, office fraternization, conflicts of interest).
• Requirements that the employees behave professionally toward each other (e.g., no workplace displays of affection).
• Promises that the employees will not put themselves in a position where one employee has actual or perceived authority over the other.
• Confidentiality provisions.
• And/or other provisions specific to the employees’ particular situation.
Do love contracts help employers?
One of the primary aims of a love contract is to refute potential sexual harassment claims, e.g., that the relationship was not consensual, including that one party felt pressure to acquiesce for fear of harming their career trajectory or professional reputation. The document can also be a compelling part of an employer’s defense that the employer maintained an exemplary sexual harassment policy and made the employee aware of it.
Despite their appeal, love contracts remain untested in the courts. Indeed, it appears that no court has weighed in (at least in a reported opinion) on an employer’s attempt to use a love contract in defense of an employment-related claim. This is information lawyers would be wise to share with their clients who are considering a love contract.
Selling points for lawyers to share with client
Putting aside their efficacy in litigation, love contracts may have other benefits. When correctly implemented and followed, they can improve employee morale and retention. For example, the agreement may ease work-related concerns of employees who become romantically involved (by setting clear expectations and boundaries), and those of a party who ultimately seeks to end the relationship (by providing safeguards and reminders). Love contracts can also prevent conflicts of interest, reduce employees’ perceptions of nepotism or favoritism and avoid uncomfortable workplace displays of affection. Disclosure of relationships and early human resources involvement may also limit public relations problems down the road.
While love contracts are aimed primarily at protecting employers, employees may also benefit in the event of a harassment claim. Individuals generally cannot be held liable under the major federal employment discrimination laws (i.e., Title VII). However, some state and local laws may allow for individual liability. Plaintiffs in hostile work environment cases may also bring personal tort claims against the alleged harasser. It is not difficult to imagine a defendant-employee in this situation using a love contract as part of their defense—the success of which remains unclear. Of course, most human resources departments are not in the business of protecting alleged harassers in this way, and many workplace paramours will not see a love contract requirement as a “benefit” to them.
Warnings for lawyers to share with clients
Love contracts carry a hefty set of issues for employers, particularly in light of the untested protections they may offer. First and foremost, employees might view such contracts as paternalistic or unnecessarily intrusive. This is particularly true in today’s virtual work environment when the interaction between the employees may take place exclusively outside of the office. Moreover, in some states employment lawyers and their clients must navigate privacy laws limiting an employer’s ability to regulate employees’ personal lives.
Other practical and logistical issues abound. For example, how will an employer know when a love contract is appropriate? For both employers—and, sometimes, the employees themselves—determining when interactions between two individuals turn into a “relationship” carries its own set of problems. Additionally, is a love contract appropriate in every relationship, or, for example, only when there is a potential power imbalance? If there is a power imbalance (e.g., a relationship between an employee and their supervisor), does the employer want to “bless” the relationship at all? As with other employment policies or agreements, consistency in application is important.
Regardless of whether employees are required to disclose relationships to human resources, it is often the relationships that are kept secret that pose the biggest threats. Employees who believe they will be asked to sign a legal document governing their personal romantic or sexual relationship may be further incentivized to keep things under wraps. Additionally, what will an employer do if one or both employees refuse to sign the love contract? How will an employer know if an employee is breaching the agreement? Will human resources professionals be placed in an awkward position by overseeing the romantic relationships of their colleagues?
These are just some of the questions that lawyers should raise in counseling their clients—questions that may cause employers to shy away from love contracts.
What about office romance generally?
Love contracts essentially sanction workplace romance, albeit with certain guardrails. Using such contracts should align with the company’s policies on workplace relationships generally. Employers’ approaches to consensual workplace relationships run the gamut from outright prohibition to no policy whatsoever.
Many employers try to find a middle ground by, for example, prohibiting only those relationships between employees who report to one another, requiring disclosure of all relationships (so that human resources can make an individualized determination as to whether employer involvement is appropriate), or instituting more laissez-faire “guidelines.” The best approach to consensual workplace relationships is one that is tailored to the particular organization. As just one example, a ban on all workplace relationships may be more palatable to a small, tightly-knit organization than a large organization with employees dispersed among different business units and worksites.
Consensual workplace relationships have come to the forefront in recent news, including this month’s abrupt resignation of CNN’s president who cited a consensual relationship with a close colleague, which he was required to—but did not—disclose. Others include the University of Michigan’s President Dr. Mark Schlissel who was fired in January 2022, and McDonald’s CEO Steve Easterbrook who was ousted in 2019, each following a relationship with a subordinate. Of course, these particular examples involve high-level leaders of major organizations for which a love contract may have been ineffectual, or even inappropriate altogether.
They do, however, serve as reminders for lawyers and their clients to revisit their consensual relationship policies and the tools in their toolkit—including love contracts—to navigate these thorny situations. News stories like these also make me wonder whether we will soon see a court address love contracts in the context of a sexual harassment claim. And someday, somewhere, when a junior associate is asked to draft a love contract, she will not think it is a joke, but will instead find abundant case law and real-life anecdotes to guide her and the client.
Lindsey Conrad Kennedy is a member in the labor and employment group at Eckert Seamans Cherin & Mellott. She helps employers navigate the laws governing their relationships with their workers. Whether that means litigating a restrictive covenant case, investigating a #MeToo complaint, defending a wage-and-hour class action or negotiating an executive employment agreement, she takes a proactive, business-minded approach to addressing these and other complex problems.
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