Dankprofessor’s Weblog

A weblog examining sexual politics in higher education and beyond.

Contracted for love

And the dankprofessor does not have in mind anything to do with the Spitzer case. Love contracts in the workplace have become increasing used in the context of the efforts to bans consensual relationship being a dismal failure. A summary of the key aspects of love contracts as presented by attorney Joseph W. Gagnon follows and then I will have some comments as to the applicability of these love contracts to the university.

The essential elements. Although the precise language will vary, an effective love contract should contain the following disclosures: 1. The relationship is consensual and is not based on intimidation, threat, coercion or harassment; 2. The employees have received, read, understood and agree to abide by the company’s policy against harassment and discrimination; 3. The employees agree to act appropriately in the workplace and avoid any behavior that is offensive to others; 4. The employees agree not to let their relationship affect their work or the work of their co-employees; 5. Neither employee will bestow upon the other any favoritism or preferential treatment; 6. Either employee may end the relationship at any time and no retaliation of any kind will result; 7. The human resources department will include its contact information in case either employee feels the relationship is affecting his or her work; and 8. The employees have had sufficient time to read the document and ask questions before executing it of his or her own free will.

. Unenforceability as a contract is a nonissue. Whether the document is an enforceable contract almost doesn’t matter, because the real strength of a love contract lies in the nature of the acknowledgements made. It shows that the employer took affirmative steps to maintain a workplace free from sexual harassment and retaliation, and it serves as powerful evidence that, at least at the time of execution, the relationship was consensual. Finally, it reaffirms that both employees are aware of the existence of a policy prohibiting sexual harassment, discrimination and retaliation and their obligation to abide by it.

. A love contract will not prevent all litigation, but it will assist an employer’s defense. Like any other step an employer takes, a love contract can be a strong deterrent to employee claims, but it will not prevent all future litigation arising out of a workplace relationship. Nevertheless, a love contract will, if nothing else, lay the groundwork for a solid defense should litigation ensue. For example, an aggrieved employee can still claim he or she suffered retaliation after a breakup, but a love contract confirming that the relationship began consensually should support a defense that the perceived post-relationship retaliation was based on personal animosity rather than gender-based discrimination.

. Considerations before utilizing love contracts. Although not a concern in Texas, a GC should confirm whether privacy laws of the jurisdiction where the business operates prohibit or limit employer monitoring of workplace relationships. Also consider how to present the idea of a love contract to a couple; unless a relationship is brought to the employer’s attention, the employer must exercise sound judgment in deciding when to address what a manager’s own observations may lead him or her to suspect is a budding relationship. Decide in advance what to do if one of the participants denies the relationship or refuses to sign the document. Finally, since there is no one way of developing an effective love contract, a GC should retain experienced labor and employment counsel to draft the appropriate language that meets the particular needs and objectives of the GC’s company.

Properly implemented and appropriately drafted, love contracts will reduce the likelihood of litigation arising from workplace relationships. In the event of litigation, an effective love contract will bolster an employer’s defenses and increase the prospect for prevailing on summary judgment or at trial.

For the dankprofessor, love contracts as described by Joseph Gagnon definitely appear to be applicable to the university. However, I have not been able to find a single university which has employed a love contract or seriously considered a love contract to deal with student professor consensual sexual relationships. I can only speculate why such is the case. And my speculations are governed by the reasons given by the prohibitors of student professor relationships.

Most likely a reason that would be given to oppose these contracts is that it is impossible to stop prejudicial grading by the professor. When I have been challenged about my own past practices as a professor and I indicate that my grading of the loved one was not impacted by our relationship, many people state that they just do not believe me; they indicate it is an impossibility. Another reason might be that the underlying framework for these bans is that differential power precludes consent and therefore as a result of this situation the student is in a state of diminished capacity and could not consent to a sexual relationship with the professor and would not be able to engage in consent as part of a love contract.

Such are the hypotheticals. What I believe is the major reason for no consideration in the university place is simply that the banning agenda is anti-sexual, and the application of a love contract would function to legitimize these sexual relationships. In the workplace, concern about sexual relationships is generally of a pragmatic kind- avoid litigation. Of course, those companies which have an anti-sexual agenda would not embrace a love contract.

And one additional observation by the dankprofessor, love contracts would seem to me to be a misnomer at least as applied to the university. Universities are not attempting to ban love; their attempt is to ban sex, and I cannot recall a single university policy where love is mentioned. The professor who falls in love with a student and the loves remains a secret love has really no place to turn in the context of attempting to engage in non-prejudicial grading. Can one seriously entertain a professor being excused to grade a student because he or she is in love with the student? Of course, those most vociferously advocating these bans, committed campus purity feminists, have dehumanized male professors to such a degree that they do not consider them to be capable of love. They see them in terms of being lechers, predators, seducers, harassers, abusers, rapists, but as lovers, I have my doubts.

I hope to have more posts on love contracts.  Input from blog readers on love contracts will be greatly appreciated!

—–
If you wish, you can write to me directly at dankprofessor@msn.com
Guest commentaries should also be submitted for consideration
to the same email address.

Barry M. Dank aka the dankprofessorTM
© Copyright 2008

March 21, 2008 - Posted by | consensual relationships, corporate dating bans, ethics, fraternization, higher education, litigation, love, sex, sexual politics, student professor dating

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