Employment Law: Making it Official with Love Contracts

Evan Weese

Employers are grappling with how to best manage workplace relationships amid a string of high-profile sexual harassment cases and heightened awareness of issues relating to the #MeToo movement. To manage workplace romances and avoid lawsuits, some companies are opting to have employees sign consensual relationship agreements, colloquially known as “love contracts,” rather than outright prohibiting office dating.

These documents vary in scope but generally spell out the consensual and voluntary nature by which employees are involved in a romantic relationship at work, while also acknowledging a company’s broader dating and sexual harassment policies. They’ve been used for years but are perhaps better known with dating and harassment issues in the spotlight. That doesn’t necessarily mean they’re more common, attorneys say. Because, while there are benefits to the contracts, there also are shortcomings.

One of the participants of a love contract, for example, could argue they were coerced into signing, or they could be hesitant to disclose the relationship at all. And there’s always a possibility that love contracts create the impression that the company endorses relationships among their employees—and could even promote the idea of favoritism. And they create more work for the human resources department.

While the contracts are not a perfect solution, they can simply be another tool in the toolkit for employers wanting to foster the right culture around relationships—and potentially avoid liability. “It is not a ‘get out of jail free’ card,” says Rebecca Jacobs, a lecturer at Ohio State University’s Fisher College of Business, who teaches the class Contemporary Employment Practices and the Law within the Department of Management and Human Resources. “Really, at best, what it can do is be a piece of evidence if there is a subsequent sexual harassment claim.”

Samuel Lillard, a partner in the Columbus office of Fisher and Phillips LLP, says they’re considered by some to be heavy-handed tools used merely to make up for ineffective sexual harrassment training. He saw a surge in popularity early on in the #MeToo movement but says their popularity appears to be dwindling.

“The solution of love contracts often represents an overly narrow understanding of the problem of sexual harassment in the workplace and as a result are no longer favored by those of us advocating for new solutions, which are based on fostering effective work teams, bystander training and providing managers with tools to promote the psychological safety of all employees,” Lillard says. “A number of us are now advising employers to refocus their efforts on training managers to create a culture of effective work teams through protocols that discuss sexual harassment in a broader context.”

That means teaching managers what to do to create effective work relationships, with less emphasis on what not to do or what is illegal, he says.

Jacobs, who is expanding her curriculum to teach a follow-up class to Contemporary Employment Practices and the Law, also provides her students with this broader context. “I would never want a company to have a false sense of security, where they would think that because they have this agreement—because the person has said it is voluntary—that now we don’t have to worry about this relationship.”

The #MeToo Effect

The #MeToo movement could be having an effect on workplace dating, according to CareerBuilder, which says office romances hit a 10-year low in 2018. The online employment website found 36 percent of workers reported dating a coworker, down from 41 percent last year and 40 percent in 2008. But those figures shouldn’t give employers a false sense of security, says Rosemary Haefner, chief human resources officer at CareerBuilder.

“Office romance is experiencing a dip and whether it’s impacted by the current environment around sexual harassment or by workers not wanting to admit the truth, the fact remains that office romance has been around forever and will continue to be,” Haefner said in a press release.

For businesses that do choose to embrace love contracts, Jacobs says, the document should first and foremost outline the relationship as consenting and welcome for both parties. It’s important to prevent a superior from threatening a subordinate into sexual favors in a situation that could be construed as “consent,” but which certainly is not welcome.

“If [an employer] can prove somehow that the conduct at issue was actually welcome, that goes a long way to defeating a sexual harassment claim,” Jacobs says. “So that’s where these agreements may be useful.”

Molly Gwin, a senior associate at Isaac Wiles in Columbus, agrees. While love contracts are not a perfect solution, she says, they do have a specific usefulness. “Although important for peer-to-peer relationships, dating policies and love contracts are particularly important in relationships between a supervisor and a subordinate, where the potential for coercion is greater and the legal standards are different.”

Another critical component of the contracts is a statement saying that, if at any point in time the relationship or the conduct becomes unwelcome, whoever is upset must immediately notify human resources.

Attorneys say these love contracts must fit into the broader context by referring to the company’s Equal Employment Opportunity and Non-Harassment policies and articulate what kind of conduct is unacceptable.

Lillard recommends companies should have a well-drafted conflict of interest policy that reserves the right of the company to address supervisor-subordinate relationships or peer-to-peer relationships that have the appearance of impropriety.

Determining whether to use the contracts not a science, attorneys say. It’s not about the size of the company the industry, or whether it is private or publicly traded. It comes down to culture and how willing an employer is to take steps to get involved.

When the contracts do work as intended, they can be useful. “Executing a love contract, where employees acknowledge the relationship is consensual, can allow for a culture in which employees do not have to hide their relationship, and where employers can protect themselves from liability should the relationship deteriorate,” Gwin says.

Evan Weese is a freelance writer.