The latest trend in fending off sexual harassment suits is a "love contract." Teresa Butler, managing partner in the Atlanta office of employment law firm Littler Mendelson, explains.

Can you talk about the "love contract" and how it  works?
It’s really only intended for higher-level executives. This isn’t something we advise employers to put in their handbooks, and we don’t recommend that all supervisors issue them to subordinates. We talk about this for CEOs and officers, top-level executives, and maybe directors; that’s a judgment call for the company. It’s basically for people who have broad power in the workplace -- not the average first-level supervisor.

What is included in the contract?
The love contract does three things. First, it restates the voluntary nature of the relationship. The CEO, or whoever is in this situation, issues the agreement to a subordinate employee, basically explaining to the individual, "I want to have this relationship with you. My understanding is you want to have this relationship with me. But I’m concerned that over time you might believe that the continuation of this relationship -- even though you don’t want it anymore -- might be necessary for you to be successful here. As you know, we have a harassment policy, and I want you to understand that I’m aware of that policy and would never allow [the end of our relationship] to influence my decision making with regard to your employment." So the agreement is actually a formal contract. It restates the voluntary nature of the relationship.

What else should a love contract do?
Secondly, it affirms that the parties will use the company’s sexual harassment policies if a problem arises, and it confirms the existence of those policies and [procedures]. It also states that if the policies aren’t used, it’s fair to assume there isn’t a problem. And thirdly, the parties agree if work-related disputes arise, they’ll resolve their differences using alternative dispute resolution (ADR) rather than resorting to the courts. Some might want to use that third piece and some might not, but we recommend ADR from a legal standpoint.

How are these contracts useful?
Often these relationships go bad at some point; one party wants to end it and the other doesn’t. And then there’s retaliatory conduct by the other, sometimes by the subordinate in the form of a sexual harassment complaint. So this contract is a method for the top-level executives to just say out loud what is actually the case. It’s assurance for the company and the individuals that everybody understands what the rules are.

How legally defensible is a love contract?
The first response we typically hear, especially from lawyers, is: How could this possibly be enforceable? The idea is this person can always come back and say this was coerced, that he or she was forced to sign this agreement. That’s a risk you take with any contractual relationship because an employee is always in a subordinate role to the employer. If you take that to its logical end, you might as well say you could never have an enforceable contract with an employee.

So can they raise that issue?
Of course they can. But are you better off with the contract than without it? Yes. I think it’s a pretty tough argument for an individual who signs this agreement to say that he or she was coerced into having this consensual relationship that you’ll be able to [prove] the person had. There’s usually evidence in these cases of a consensual relationship: You’ve got birthday cards, receipts for dinner, letters and other types of communications that the subordinate employee has clearly engaged in on a voluntary basis.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

Workforce, March 1999, Vol. 78, No. 3, pp. 106-108.