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Just as Anita Hill heightened awareness about sexual harassment in the workplace, the current White House scandal is drawing attention to the appropriateness of romance in the workplace.
That recently became evident when the Los Angeles Times, The New York Times and other media reported on the use of workplace "love contracts" that proponents say can help companies thwart lawsuits resulting from relationships turned bad.
Because soured office romances between employees can spawn sexual harassment lawsuits, some attorneys are recommending that employers consider protecting themselves by asking love-smitten employees to voluntarily sign statements acknowledging that their relationships are consensual.
But other attorneys and risk management experts dismiss the need for such documents. They argue that a strong company policy against sexual harassment and a well-communicated prohibition against workplace dating should be adequate to protect employers.
Those measures, however, are not enough to protect employers in all cases, particularly when the relationship is between bosses and employees they directly supervise, according to proponents of the signed statements.
"The reality is that, unless you fall in love and decide to marry and live happily ever after, the scenarios that could build in a workplace setting, especially between a high-level executive and someone else in the organization, are of Titanic and nightmarish proportions," said Garry Mathiason, a senior partner in the San Francisco office of Littler Mendelson, a nationwide firm specializing exclusively in employment law.
Mr. Mathiason equates the contracts to metal detectors at the entrance of public buildings. It's sad they are necessary, he said, but with the boom in employment-related lawsuits, companies need to consider the idea. None of the employees who have signed contracts overseen by Mr. Mathiason has challenged the documents' validity in court, he said, nor has anyone who has signed the documents sued the employer for sexual harassment related to his or her interoffice relationship.
It is common enough, particularly in clandestine office liaisons, for one party to end a relationship only to have the other person claim, perhaps out of spite, that he or she was forced into the situation, said Beth A. Schroeder, head of the employment law practice at Silver & Freedman in Los Angeles. At that point, a spurned lover has plenty of damning evidence to back his or her allegations, she said.
"They have all the cards and gifts and everything else the alleged harasser gave them, and the harasser says, 'Oh, no, it was consensual,' " she said. "Unfortunately, what I see is in the 'consensual relationship,' somebody later claims it is not consensual."
The agreements that Mr. Mathiason and Ms. Schroeder provide for employees to sign acknowledge that a relationship exists and that neither party was coerced into the affair. The statements also affirm that the company has zero tolerance for sexual harassment and that if the relationship should ever change or end and one of the parties then feels harassed, that party can then bring it to the employer's attention.
If a problem develops, employers want the parties stepping forward to say they no longer are comfortable working together, rather than quitting and suing for sexual harassment, Ms. Schroeder said. Getting them to step forward empowers employers. "Once they have sued, it is out of your hands and you can do nothing about it but pay money," she said.
The agreements also state that if there is a dispute, the parties will solve the matter through arbitration. Ms. Schroeder refers to the forms as "memos" rather than contracts because they tend to be free of legalese and threatening language. They also state that public displays of affection are not appropriate in the workplace.
But some employer liability experts are skeptical about the need for the agreements.
The signed forms may be worthless as contracts because the employer is not giving up anything in consideration for an employee signing, said Frances J. Skinner-Lewis, a partner specializing in employment law at Schuyler Roche & Zwirner in Chicago.
There is a movement afoot to recognize how employers can protect themselves from workplace relationships, Ms. Skinner-Lewis said. But the best employer protections already are available through strong policies against sexual harassment and well-communicated prohibitions against office relationships, she said.
"If that is well stated, then you save yourself from being a victim of a harassment claim when a relationship goes sour," Ms. Skinner-Lewis said.
Others agree. From a risk control perspective, companies are well advised to maintain polices stating that one spouse cannot supervise another and that a manager should not supervise anyone with whom he or she is involved in a social relationship, said Gary Salmans, vp and manager of risk control services for Sedgwick of Colorado Inc. in Denver.
But asking an employee to sign a statement may not be good advice, said Mr. Salmans. He cites a pair of landmark U.S. Supreme Court cases handed down this summer. In Beth Ann Faragher vs. City of Boca Raton and Burlington Industries Inc. vs. Kimberly B. Ellerth, the high court said employers have a two-part affirmative defense against sexual harassment lawsuits if they exercise reasonable care to prevent and correct sexually harassing behavior, and if the plaintiff employee unreasonably fails to take advantage of corrective opportunities.
That means if employers present all employees policies on sexual harassment and have a method for reporting occurrences, they are protected, Mr. Salmans said. But the second part of an employer's affirmative defense, as outlined in the second part of the court's decision, could be lost when an employee who signed a contract does step forward and give notice the relationship has ended.
"Why would you want to start another paper trail of something that you are going to have to defend when the federal courts have already set the guidelines for you to follow?" Mr. Salmans wonders.
But proponents said the court decisions make their strategy all the more crucial. The more times you can have an employee's signature saying he or she has been advised of a sexual harassment policy, the better, they said.
It is better for couples to sign the memo because then, if need be, the employer is in a better position to prove that the plaintiffs knew of the sexual harassment policy but did not take advantage of it.
"Even if you have a sexual-harassment policy, people still quit and sue," Ms. Schroeder said. Especially if the activity involves someone of senior status, "People can say, 'I thought I would get fired if I brought it up,' so it is extra protection."
The contracts should be used only for very specific cases and with the advice of counsel, Mr. Mathiason advised. So far, only a "handful" of employers have used the documents in cases involving very senior executives, he said.
Neither Mr. Mathiason nor Ms. Schroeder recommend the contracts be applied on a blanket basis. They are not for employees of equal rank. While workplace romances can turn ugly and disruptive, many marriages also result from employees mating, Mr. Mathiason noted.
Still, one risk manager for a major corporation based in New York said she continues to believe the old advice that workplace involvements are fraught with danger and potential disruptions, though her company does not have a formal prohibition against it.
But today, employees are traveling more and working longer hours, the risk manager said. They are more likely to form romances through work rather than through family connections or through outside social gatherings.
"Somebody comes in from Kansas City to work in New York, and who do they know?" she asked. "Usually your workmates are the people who become your friends, or you think they are your friends."