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British actress Olivia Williams with sabre fish.
Christine Barney doesn’t know who brought up the idea first. All she remembers is that a few years ago she and a male colleague, Robert Gill, stopped in a deli for lunch on a car trip to visit a client, and one of them casually mentioned that it would be fun to do something outside of work — as in “Maybe we could go to the movies sometime soon,” she says.
So Barney, who was the managing partner of a public relations firm in Miami, did what any recently divorced woman in a two-year dating drought would do. She ran straight to her business partner, Bruce Rubin, and told him that she and Gill, the company’s senior writer, were thinking of dating. “I wanted to make sure it was above board,” says Barney, now 41.
But Rubin wasn’t thrilled about the idea of Barney mixing love and work, especially with a subordinate. So he ran straight to his lawyer, who explained that the potential lovebirds just needed to sign an agreement stating that their fraternizing was consensual.
Never mind that Barney and Gill had yet to hold hands, kiss or exchange goo-goo eyes. Barney told Gill that before they even planned their first date, he needed to sign a so-called love contract to release the company from any legal claims if things turned ugly. “This is really uncomfortable,” he told her as he picked up a pen.
He signed. She sighed. They picked a film. Now, they’re married and have a 7-month-old son. They even still work together at another company that Barney heads. “It was awkward,” she admits. “He had to sit down in front of my partner and say that I wasn’t harassing him.”
“I didn’t even know these things existed,” says Rubin of what are formally known as “consensual relationship agreements.” “Once they signed the document, I felt much better as a manager. You have to protect your business from litigation.”
Love contracts may enable legally safe sex in the workplace, but they’re about as romantic as nooky in the office supply room. In the typical progression of a relationship — from establishing exclusivity to meeting family to saying “I love you” — where exactly does “We must sign this legal document so we can protect our company in case I freak out and make your life a living hell” fit in?
Here’s how they’re supposed to work: Once you and a co-worker become an item, you declare your status to a supervisor, who sprints to human resources, which then calls legal. Then you and your “more than a friend” sign a document claiming that you are in a consensual relationship and are not being sexually harassed. The contract also states that if you do begin to feel uncomfortable, you agree to follow company reporting procedures. (Your employer then has to investigate and deal with the issue.) “This isn’t in lieu of a sexual harassment policy,” says Jeff Tanenbaum, chairman of the labor practice group at the law firm Nixon Peabody in San Francisco. “This is an additional tool that employers can use to prevent harassment.” Finally, you agree to behave professionally in the office and at corporate events and try not to nauseate your co-workers on a regular basis.
No hard figures exist on the number of love contracts, but Dennis Powers, an attorney and professor of business law at Southern Oregon University, estimates a few thousand are written annually. While a small number of companies have tried banning dating by co-workers outright, most don’t attempt to enforce an impossible rule in hormone-charged cube farms, and so some turn to love contracts for protection from six-figure damages awards in sexual harassment cases.
Tanenbaum, who has written more than 100 love contracts for companies ranging from Fortune 500 firms to mom and pops, says he has seen a steady increase over the past decade. He usually receives a run of phone calls from skittish managers whenever a high-profile sexual harassment case hits the news. Even the Bill Clinton-Monica Lewinsky scandal was good for business. “It wasn’t even an issue of harassment, but I got a lot of phone calls from people asking, ‘How do you handle sexual relations in the office?’” he says.
Tanenbaum’s first request came in the late 1980s from a senior executive at a high-tech company, who was dating a subordinate and freaked out when he read a newspaper story about a manager in a similar situation being accused of harassment and discrimination when the relationship soured. After joking that he needed couples therapy, not legal counseling, Tanenbaum whipped out an agreement saying that the executive’s lover believed the relationship was consensual and that she would complain to human resources if she felt differently. “She got a great laugh out of it and signed it,” he says.
But labor lawyer Andrew Marks of the New York law firm Littler Mendelson says love contracts aren’t just for underlings anymore. He has advised clients to ask all dating co-workers (equal or otherwise) to sign them at the first whiff of romance. And if the smitten couple won’t come forward, managers have an obligation to ask them to sign a contract. “It’s not unusual for damages awards for sexual harassment to reach $250,000,” he says. “Clients need to be more vigilant. If the risk is greater, the preventative measures should be greater.” Marks had one case in which the parties denied they were even dating. But he drafted a contract anyway and had them sign it to acknowledge they were aware of company reporting procedures — just in case. Even though it may be difficult for equals to claim possible harassment, one member of a co-worker couple could claim he or she had to work in a hostile environment and could blame the employer for ignoring the problem. “Once it’s reported, the company would have to address it,” says Marks. “Then you can hold them accountable.” But if the employees sign a document promising to come forward, they can’t claim later that they didn’t know there was a policy. “You’re building your defense,” he says.
“That’s like an office prenup!” squawked Brette, 30, of Long Island, N.Y., who had never heard of love contracts until she was asked about them for this story. (She did not want her last name published.) Brette, who recently had a secret affair with an assistant at a film production company in Los Angeles, laughed at the idea of signing one. “It’s really inappropriate for your company or boss to be involved in your love life,” she says, adding that the legal part wouldn’t have bothered her — she just wouldn’t have wanted everyone at work to know whom she was sleeping with.
Tanenbaum thinks love contracts should be used only as a last resort, especially when the lovers’ relationship drama is distracting them and disturbing everyone else in the office. “My advice to clients is that a relationship that people have is none of your business,” Tanenbaum says. “The moment it affects their work, it’s your business.”
That’s why he recommends using contracts only when trouble arises (poor performance, favoritism, hurling staplers across cubicles, sneaking off into the coat closet). They’re also useful for reinforcing a little workplace decorum. Once, Tanenbaum handled a case for a company where a couple was discovered going at it in the stairwell. “It was a little embarrassing for the folks involved,” he says, laughing. So he wrote in the contract, “You need to behave professionally in the workplace.” He purposefully leaves the language vague so the parties can’t claim that certain behaviors — say, foot massages — weren’t included. However, for one extra-affectionate couple at another company, he had to spell it out what “professionally” meant — as in no holding hands, kissing, hugging, touching in a sexual manner or engaging in suggestive gestures or speech. “They were fondling each other in the hallway,” he says.
Tanenbaum has written up contracts for heterosexuals, gays, married people having affairs and even a threesome. “Yep, it was a ménage à trois,” says Tanenbaum in a tone that dares anyone to doubt employment law isn’t sexy. “They were hanging out, being touchy-feely in the break room. We just reminded them how to behave in the workplace.”
But whatever their content or context, some lawyers think they’re pointless. Love contracts are unlikely to hold up in court, insists Robin Bond, an employment lawyer based in Philadelphia, who also writes a blog about workplace issues, including office romances. “These aren’t enforceable legal documents — there’s no precedent,” she explains, adding that they could only be useful in showing someone’s state of mind at the beginning of a relationship. “They’re more like informed-consent documents. It’s all about CYA,” she says, using the acronym for “Cover your ass.”
“It’s overkill,” adds James Bucking, a labor attorney with Foley Hoag in Boston. He prefers that clients address possible favoritism by including romantic relationships in a company’s general conflict of interest policy. (That’s in addition to a sexual harassment policy, which most companies already have.) And juries are often skeptical of claims of coerced long-term relationships anyway. “In other words, you can’t date for a year, then say it’s a forced relationship,” he says. “It’s either a forced relationship or it isn’t.”
They may seem prudent, but such contracts can have unintended consequences by giving companies too much information. Could a white woman later claim she was unjustly fired because the company didn’t approve of her dating an African-American man? What about same-sex couples or extramarital affairs? “The company may not want to know these things,” says Bucking. “You’re creating more problems than you solve.”
The growing popularity of the contracts may be the result of unwarranted managers’ paranoia, says Powers at Southern Oregon University, who is also the author of “The Office Romance: Playing With Fire Without Getting Burned.” He argues that sexual harassment claims stemming from consensual relationships aren’t that common. “The evidence does not support their fears,” he says. Besides, a well-run company with good ombudsmen can manage messy romances without bringing in lawyers. “It’s important to take love contracts with a grain of salt,” he says. “They’re not an absolute cure-all.”
They’re not always an effective deterrent, either. Dozens of people interviewed for this story didn’t know whether their companies had dating policies, and the common understanding was that splashing in the company inkwell wasn’t the best idea anyway.
According to Powers, only few companies dare to have blanket nonfraternization polices, such as “You date, you’re fired,” he says. A 2003 American Management Association survey of nearly 400 members shows that only one company in eight had written guidelines on dating, and those usually covered dating between superiors and subordinates. (Commonly, policies require that one member of the boss-underling couple transfer to another department or leave the company.) Also, two-thirds of managers and executives said it’s fine to date someone from work (mostly equal co-workers), and 30 percent had done so.
Institutional approval aside, it may just be too hard to fight that feeling. Studies show that people who come in repeated contact become attracted to each other. In a 2005 survey by CareerBuilder.com of more than 1,300 workers, more than half said they have dated a colleague, and 14 percent admitted to dating the boss. Nearly a third said they have had an office romance twice or more.
Of course, other factors, such as long hours, gender equality, delayed marriage and group projects, help create ripe conditions for workplace lovin’. Plus, throw in a few drinks after work. “It’s like, ‘Hello?’” says Powers. “Companies shouldn’t be so surprised people pair off.” Also, given the fact that colleagues become friends, tend to share similar values and goals and have plenty of office gossip to yak about, the office may be an ideal hunting ground. In a recent Vault.com survey of more than 600 workers, 22 percent said they had found their spouse or significant other on the job. “People who are working together and having shared experiences have a better likelihood of long-term relationships [than they would from] getting sloshed-drunk at some bar or playing Internet roulette on some Web site,” says Powers.
So if you’ve found true love, what’s a minor detail like a love contract? That’s not the problem, complains Art, 36, who works at a financial services firm in Manhattan (and did not want his last name used). The real danger is that contracts could threaten perfectly good but meaningless office flings by forcing a relationship status. One has to prematurely ask, “Is she contractworthy?”
Take Art’s most recent adventure, for example. He invited a hot new co-worker out for drinks one night, and although they hooked up a couple of times, he didn’t see a long-term relationship in the cards. “She was just a little off, like she did too many drugs,” he explains. “And she didn’t read much.”
He brushed off their affair as casual, but she wanted more. “She wanted to be dating,” he explains. So he cut it off completely and suffered through a few more awkward months until he joined another company. Luckily, says Art, he was never asked to sign anything. “That would have implied to her that I wanted to pursue something long term and exclusive,” he says. “Then when, a week later, you don’t want to date anymore, you look like an ass because you signed this thing.”
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