This Standard Document was reviewed in February 2013 by our editorial team as part of ongoing maintenance. This Standard Document is also continually monitored for any necessary changes due to legal or practice developments.
A consensual romance agreement to be signed by two romantically-involved employees representing that their relationship is entirely consensual and acknowledging the employer's anti-harassment policies and rules. This Standard Document is drafted in favor of the employer. It is based on federal law. This Standard Document has integrated notes with important explanations and drafting tips. For information on state law requirements for discrimination and harassment, see the State Law Q&A Tool under Related Content to the right.
Employers allowing employees to engage in romantic relationships with one another can ask romantically involved employees to sign an agreement stating that their romantic relationship is entirely consensual and free from coercion, intimidation and harassment (www.practicallaw.com/2-508-3174). These agreements are often referred to as love contracts.
Employers should consider using this love contract to minimize legal risk associated with employee romantic relationships, particularly potential sexual harassment claims. For more information about the risks associated with employee romantic relationships, see Practice Notes, Romance in the Workplace (www.practicallaw.com/0-502-6127) and Harassment (www.practicallaw.com/9-502-7844).
Before employers request romantically involved employees to sign this agreement, they should interview each employee separately. They should record the conversation, whether in written notes or by audiotape, and ask questions designed to confirm that the relationship is entirely consensual. The employer should then explain each portion of the agreement to each employee separately and review the policies it references with them. Finally, the employer should ask each employee to review the agreement and to sign it if they agree with its terms.
To further minimize risk, all employers should consider:
Implementing and uniformly enforcing an anti-harassment policy (for a sample policy, see Standard Document, Anti-harassment Policy (www.practicallaw.com/7-501-6926)).
Implementing and uniformly enforcing a romance in the workplace policy (for a sample policy, see Standard Document, Romance in the Workplace Policy (www.practicallaw.com/8-502-7646)).
Conducting training on sexual harassment prevention (for more information, see Sexual Harassment Prevention Training Checklist (www.practicallaw.com/9-502-7349)).
1. Equal Employment Opportunity Workplace . The undersigned recognize and agree that it is [EMPLOYER NAME]'s policy to provide an equal opportunity in hiring, employment, promotion, compensation, and all other employment-related decisions without regard to race, color, religion, creed, national origin or ancestry, sex, age (40 or older), being a qualified person with a physical or mental disability, veteran status, genetic information, or any other basis set forth in the applicable federal, state and local laws or regulations relating to discrimination in employment. The undersigned understand that [EMPLOYER NAME] does not tolerate unwelcome or offensive conduct or conduct that creates a hostile work environment that is in any way based on or related to a person having any of the characteristics described above.
The undersigned agree that they have received, read and understand [EMPLOYER NAME]'s [NAME OF EQUAL EMPLOYMENT OPPORTUNITY POLICY] and agree to adhere to all of its terms.
Employers should consistently take advantage of opportunities to remind employees that they are an equal employment opportunity employer and that they do not discriminate based on any protected characteristic, whether under federal, state or local law.
Employers should ensure employees acknowledge this fact in this type of agreement in case one or both later brings a claim for harassment or discrimination related to a failed relationship. For more information about the legal risks of a failed employee romantic relationship, see Practice Note, Romance in the Workplace (www.practicallaw.com/0-502-6127). For a sample equal employment opportunity policy, see Standard Document, Equal Employment Opportunity Policy (www.practicallaw.com/6-500-4349).
2. All Forms of Sexual Harassment Prohibited. The undersigned also recognize and agree that [EMPLOYER NAME] does not tolerate sexual harassment, a form of unlawful discrimination. Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
submission to such conduct is made, explicitly or implicitly, a condition of an individual's employment or advancement;
submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
such unreasonable conduct interferes with an individual's work performance or creates an intimidating, hostile, or offensive working environment.
The undersigned agree that they have received, read and understand [EMPLOYER NAME]'s [NAME OF ANTI-HARASSMENT POLICY] and agree to adhere to all of its terms.
Sexual harassment is the most likely discriminatory practice an employee may claim if an employee romance goes awry. Accordingly, it is especially important to remind and request employees to acknowledge in writing that sexual harassment of any kind is absolutely prohibited and not tolerated (for more information on the different types of sexual harassment, quid pro quo (www.practicallaw.com/2-502-5344) and hostile work environment (www.practicallaw.com/4-502-5338) harassment, see Practice Note, Harassment (www.practicallaw.com/9-502-7844)).
It is also helpful to remind employees about the employer's anti-harassment policy, which should contain mandatory procedures for reporting harassment if it occurs, and request that they acknowledge the policy in writing. Having this policy and applying it uniformly assists employers in making a defense in certain sexual harassment cases called the Faragher-Ellerth defense (www.practicallaw.com/4-502-6644). For more information about the importance of anti-harassment policies and the Faragher-Ellerth defense, see Practice Note, Harassment (www.practicallaw.com/9-502-7844). For a sample anti-harassment policy, see Standard Document, Anti-harassment Policy (www.practicallaw.com/7-501-6926).
3. Consensual Relationship. We, the undersigned employees, have entered into a personal relationship with each other. We agree as follows:
Our relationship is entirely voluntary and consensual.
Our relationship will not have a negative impact on our work.
We will not engage in any public displays of affection or other behavior that might create a hostile work environment for others or that might make others uncomfortable.
[We understand that one or both of us may need to transfer to another [department/group/location] to remove any conflicts of interest in our working environment. If a transfer will not remove the conflict of interest, we understand that one of us may have to resign or be demoted to remove the conflict of interest. We further understand that [EMPLOYER NAME] will first ask us to choose which of us will be subject to a transfer, demotion or resignation. If we fail to choose, [EMPLOYER NAME] will be forced to choose for us. We understand that [EMPLOYER NAME] will make such a decision without regard to any protected class characteristic and in compliance with [EMPLOYER NAME]'s [NAME OF EQUAL EMPLOYMENT OPPORTUNITY POLICY] and [NAME OF ROMANCE IN THE WORKPLACE POLICY].]
We will act professionally toward each other at all times, even after the relationship has ended.
We will not participate in any company decision-making processes that could affect each other's pay, promotional opportunities, performance reviews, hours, shifts or career, while in this relationship [and after the relationship ends].
We agree that, if the relationship ends, we will inform [EMPLOYER NAME] if we believe it is necessary to protect our rights or if the [NAME OF ANTI-HARASSMENT POLICY] is violated.
We each agree that, if the relationship ends, we will respect the other person's decision to end the relationship and will not retaliate against the other person, engage in any unprofessional or inappropriate efforts to resume the relationship, or engage in any other conduct toward the other person that could violate the [NAME OF ANTI-HARASSMENT POLICY].
This section, the most important of the agreement, allows employees to show that the parties represented to the employer that their relationship was free from harassment, coercion or intimidation. This representation minimizes risk to the employer that one of the employees will later claim they were sexually harassed or pressured into the relationship. It also demonstrates to courts that the employees were on notice about their expected conduct should problems later arise.
The employees also acknowledge in this section that their relationship could create a conflict of interest and agree to cooperate with certain procedures necessary to remove the conflict of interest, including an optional clause subjecting one or both of them to transfer, or in a worst-case scenario, demotion or termination.
It is strongly recommended that employers do not permit romantically involved employees in the same reporting structure to remain there, whether supervisor/supervisee or any other structure where one of the employees is able to affect the terms and conditions of the other's employment. A lateral transfer of one of the employees to another department, group or location is the easiest way to remove the conflict, but where a transfer is not possible or feasible, it may be necessary to consider a demotion or termination of one of the romantic partners. In all cases, the employer should ask the romantically involved employees to determine which employee will be affected to minimize risk of discrimination claims.
In this section, the romantically involved employees also agree that they will not participate in any decision-making processes that could affect each other's terms and conditions of employment. This clause contains an optional phrase allowing the employer to choose whether it should apply only for the duration of the relationship or afterwards as well. Although it may be logistically easier for the employer to limit it to the duration of the relationship, employers should strongly consider leaving the prohibition in place after the relationship ends to minimize risk of discrimination and retaliation (www.practicallaw.com/6-503-9612) claims (for more information about retaliation, see Practice Note, Retaliation (www.practicallaw.com/5-501-1430) and Standard Document, Anti-retaliation Policy (www.practicallaw.com/8-503-5830)).
The representations by the romantic partners also help ensure that the employees will not:
Disrupt the workplace by acting unprofessionally.
Allow the relationship to negatively impact their work.
Negatively impact the environment of those around them.
Finally, the representations reiterate that the employees:
Are aware of the employer's anti-harassment policy.
Will not violate the policy in any way.
Will follow its procedures for reporting any harassing behavior.
This minimizes risk of a harassment claim and increases the likelihood of being able to use the Faragher-Ellerth defense in litigation if necessary.
IN WITNESS WHEREOF, the undersigned have executed this [Certificate/Receipt] as of the [DAY OF MONTH] day of [MONTH], [YEAR].
Dated this _________________ day of ____________________, _____. Employees: ________________________________ [EMPLOYEE NAME] ________________________________ [EMPLOYEE NAME] Witness: ________________________________ [WITNESS NAME] |