What Is a Consensual Relationship Agreement?
A consensual relationship agreement is a document signed by two parties who are engaged in a consensual sexual or romantic relationship in the workplace. Lawyers understand that "consensual" must be viewed in the context of the employer-employee relationship and the dissemination of authority either expressed or implied. A consensual relationship agreement is a means of addressing the social phenomenon known as sexual harassment. It is a tool designed to minimize the risk of litigation against an employer by addressing in advance a relationship which might otherwise lead to a claim for sexual harassment. The consensual relationship is presumed to be consensual, based on the agreement of the parties and their participation. It is designed to reduce the perceived need of an employee to rely on an employer to end an otherwise voluntary relationship, or to provide redress against what the employee might perceive as a subsequent failure to continue the relationship on mutually agreeable terms. Undoubtedly, an employee may have claims against an overly aggressive or abusive other employee and/or the claim about conditions on employment or continued employment will be present, but the consensual relationship agreement is designed to shift the focus from one where the parties may have limitations on any recovery only from the aggressor and/or involved supervisor to one where the parties have restricted their rights against the employer whose supervisory status over one will be used to establish the claim. Since the consensual relationship agreement will be used as a defense in a potential claim alleging sexual or other unlawful discrimination against the employer, litigation relating to that claim and its defense will include issues about why the agreement is or is not binding (e.g., was it sufficiently known to the employer, was the employer complicit in or aware of the relationship and has the employer sought to enforce or has event taken some action to remove any concern it may have had). The FRPA at N.J.S.A. 34:19-1, 1 . 4, prohibits the discharge, termination, or discrimination against an employee because of that employee’s "political beliefs, gender, race, color, religion, creed, national origin, ancestry, age, marital status, civil union status, domestic partnership status, military status, sexual orientation, gender identity, gender expression or disability." See N.J.S.A. 34:19-2 (1988). "Domestic partnership" is defined to include same sex relationships. See N.J.S.A. 18A:18A, 22-27 to -29 (Supp. 1999). The legislation further identifies "sexual orientation" as "having or being perceived as having an orientation for heterosexuality, homosexuality, bisexuality, or transgender." See N.J.S.A. 52:14B-3. Additionally, the legislation expands the term "disability" to include "a debilitating physical or sensory disability caused by injury, illness, trauma, genetic conditions, congenital conditions, psychological disorders or birth trauma which shall become apparent only after the first 12 months of employment." See N.J.S.A. 52:14B-3 (1992). In the workplace, the individuals who enter into a consensual relationship might be among those protected by gender discrimination statutes (i.e., members of the LGBTQ community). Thus, the issue of consent will be re-examined and the concept of consensual will be challenged. The consensual relationship agreement’s purpose therefore continues to rest solely on its effect as a defense to any claim of discrimination by an employee in a employment-based relationship with a co-worker. The problems continue to be how to find a way to address what may be perceived as a real problem. In its strictest form the consensual relationship agreement is to be used to emphasize that parties to a consensual relationship understood the need for each other to be in the workplace, but to also go their separate ways. Since the parties understand from the outset, that the relationship has the potential to negatively affect a third party, such an agreement can shift most of the responsibility to the individual employees who choose to continue their relationship in the workplace and to manage their own future. Otherwise, the employer’s risk is to be engaged in a lawsuit where the consensual relationship agreement is the foundation for the employer’s defense.
The Advantages of Consensual Relationship Agreements
Consensual relationship agreements can deter supervisors from imposing unwanted or inappropriate influence over employees. In addition, relationships governed by these agreements might be better able to withstand scrutiny after the fact. Because consensual relationships are often a grey area in the law, there is some value to waivers of legal liability. Sometimes these agreements help the company by deterring and/or providing a unique defense to sexual harassment claims. Consensual relationship agreements may protect a company from sabotage – by a supervisor or coworker involved in an affair – by requiring the couple to report any change in their relationship to the company and/or to keep their hands off coworkers who were previously friends. Consensual relationship agreements also can demonstrate that the company is treating all sexual harassment claims seriously and is working hard to promote professionalism in the workplace. Under some circumstances, this will bolster the company’s opposition to those baseless charges. Also, consensual relationship agreements help clarify how employees are expected to behave once a supervisory relationship ends sexually. For example: If, at the time the relationship ends, a couple has a few weeks of down time and there is no interference with functions of employees not directly involved with the relationship, the employer may be able to make a case that the employer should not be found liable for any resulting workplace dysfunction.
The Disadvantages and Potential Problems
Despite the clear advantages of CRAs and affordances they provide to foster disclosure – thus permitting the employer the opportunity to monitor, restrict and control the interaction between the parties so as to reduce the risk of harassment, discrimination or conflict of interest claims – there are potential drawbacks and challenges to their use. Notably, requirements for disclosure may create privacy concerns, power dynamics and perceptions that the employer is unreasonably intruding into its employees’ personal lives. Such intrusions might arguably violate the prima facie balance of privacy rights and the integrity of the workplace.
Moreover, the very requirements of disclosure and monitoring create a power dynamic that can create the perception or actual situation of coercion by the more senior employee over the less senior employee. Absent the proper conditions of free consent, the CRA could actually present a fertile field for a potential claim of harassment if it is not clear that there was no coercion involved leading up to the employee’s decision to consent such.
Such perceptions may also lead to real or perceived barriers to the continued existence of the consensual relationship. It can be argued that such restrictions serve to destroy the intimacy of the personal relationship between the parties to the agreement and can alter their dynamic or interfere with a number of interpersonal activities that would otherwise exist between them in the ordinary course of their relationship, absent such restrictions and restrictive arrangements made by reason of an employment contract. In particular, it can be argued that treating personal relationships as certain "outcomes" to be planned for, legislated around and monitored by the employer, destroys the very reason they exist in the first place: a private and otherwise unregulated relationship between the parties. As a result, participants may choose not to make appropriate disclosures leading to the very situation CRAs are purportedly designed to prevent.
Legal Implications
Legal considerations for consensual relationship agreements will depend upon the applicable employment law, which varies from jurisdiction to jurisdiction. Employers should ensure that such contracts are enforceable under relevant law, in particular the law of contracts concerning valid offer and acceptance; consideration; and intention to create legal relations. In addition, in Canada, employee’s rights to personal autonomy are recognized, which may make a contract where an employee cedes their right to engage in consensual romantic relationships enforceable. Internationally, this also means that some countries will not recognize a right to privacy per se and require recognition of a convention in international law that recognizes such right or otherwise apply domestic privacy law.
Particular concerns arise where the relationship between an employee and employer is not consensual. In general, employers may be liable where there is evidence that the employer was aware of the consensual agreement and/or benefits were provided as a result of the consensual relationship. An employer should broaden its investigation into discrimination and harassment to include situations where a consensual relationship has resulted in coercive or dominating conduct by one party.
Critical Aspects to Cover
First and foremost, the agreement should expressly state that the relationship is a consensual one. Second, because Title VII prohibits employers from treating employees differently because of their gender, the agreement should require the supervisor to treat the employee no differently than he or she would have treated the employee had no relationship existed. While this provision alone cannot stop every potential claim of favoritism, it will certainly deter it and better protect the employer.
Third, the agreement should contain certain behavior expectations, including whether supervisors and employees will be required to report the relationship to anyone , even though not required by law. It should also address whether employees will be allowed to take work paid time off to spend time together. Next, the agreement should set forth the address of the location where the parties choose to meet during work hours, if any. Some companies go so far as to establish that consensual relationships are only to occur outside work hours and, regardless of the location, prohibit employees from using work property, such as computers and cell phones, in connection with the relationship. Finally, the agreement should include what happens should the relationship fail, including whether one or both of the parties will be required to report possible claims of sexual harassment.
Implementing An Agreement Within Your Organization
When deciding to implement a Consensual Relationship Agreement into your company, the first step should be addressing the new policy. Depending on how large your company, these discussions may happen in a one-on-one context up to an all-staff meeting. Discussing the reasons behind such measures will help your staff understand the motivation for the new policy and encourage them to comply. By getting input from your employees during the formation of these documents, you may be able to bring up suggestions which will benefit your company as a whole.
Once the agreement is drafted, another meeting should be held to ensure that all questions and concerns are addressed before employees are required to sign the new document. This is another opportunity for employees to bring up any issues they see with the agreement. It is also important that employees understand exactly what this document entails so that they are not surprised when they are one day presented with a disclosure form from the company’s Human Resources department.
After the agreement has been signed by all responsible parties, it must be maintained. An annual reminder of the agreement will help ensure that all employees remain apprised of their responsibility to comply. Failure to disclose workplace romances will usually not have immediate consequences, but allowing the behavior to continue for a long period of time without having both parties fill out the required paperwork could be seen as tacit approval of the relationship. It could also be viewed as a response to the relationship in the event a claim is made by one of the parties involved.
In order to ensure that some disputes do not end up in the court system, it can be important to have an arbitration provision within the agreement.
Cases Studies and Real-Life Illustrations
Let’s take a look at some real world examples when the rubber meets the road about how consensual relationship agreements (CRAs) are utilized, and in some cases challenge or disputes surrounding how the agreement is carried out.
In Burkholder v. Haverford Heights Apartments Holdings, 2016 WL 1553308 (E.D. Pa. Apr. 12, 2016), plaintiff sued the apartment owner and manager alleging that he was terminated from his position as maintenance supervisor because of his romantic relationship with another employee. To support his argument that he was wrongfully terminated, the plaintiff produced a copy of the WAHA’s Employee Handbook which did not expressly prohibit his relationship with the female co-worker. The defendant argued, however, that it had a no-couple rule, but did not enforce it, until it discovered the plaintiff’s relationship. In support of its defense, the defendant produced a letter to the plaintiff stating that it was requiring him and his live-in girlfriend to sign CRAs. After several encounters and discussions, the parties signed a CRA.
The plaintiff alleged that the defendant’s practice of requiring all employees who were in a romantic relationship with another employee to sign CRAs was the policy of WAHA which was in the employee handbook. However, in the same period within the timeframe when the parties were discussing or negotiating the requirement of signing a CRA, the defendant apartment owner and manager, WAHA, entered into a memorandum of understanding with the township’s township’s Human Relations Commission (HRC) to allow individuals greater flexibility and increase the employment opportunities for its residents. Furthermore, the Township (which it was charged stated it was promulgating a Fair Housing Act in line with the Pennsylvania Fair Housing Act (PHFA) and the New Jersey Law Against Discrimination (NJLAD)), required the defendant to amend its employee handbook and add guidelines, language and information about the CRA requirement. The amended policy revised language stating that only married employees or employees in a committed relationship (such as a domestic partnership) are required to sign a CRA. The plaintiff alleged that the defendant apartment owner and manager should be bound by the revised policy, however, the defendant also submitted evidence that the plaintiff not the defendant, breached the CRA by engaging in more than a personal, work place relationship, and exhibiting excessive and inappropriate behavior towards the plaintiff’s now ex-partner. The district court observed, that it was not obvious that the defendant violated the CRA and did not warrant summary judgment in the favor of the plaintiff. Further it was not appropriate for the court to engage in a factual determination about the violation of the CRA because there was conflicting evidence about the violation of the CRA.
The Burkholder case highlights what I commonly observed in negotiating CRAs, employer confidentiality problems and issues of enforcement of the policy. Employers at times simply ignore apparent Co-workers’ conduct in failing to adhere to the disclosed agreement. In Burkholder, I was surprised that as an enforcement mechanism, the defendant opted for a letter to the plaintiff about his failure to adhere to the casual relationship rather than terminating the plaintiff initially once they suspected that he had violated the terms of the CRA. In most situations, when an employee violates the CA, the default reaction is to terminate the employee, although in Burkholder the parties had a more cordial relationship and the plaintiff did not work directly with his ex-girlfriend at the time of his termination. Another area that I find problematic is the alienation of third parties who are not involved in the policy and particularly those who are in a work relationship with the parties to the CRA, such as other coworkers or subordinates. In Burkholder, the plaintiff’s ex-girlfriend said she was harassed and demeaned by the plaintiff after the CRA was signed. I suspect this is a common situation when one party to the CRA is allegedly ostracized by other employees based upon rumors or the company gossip mill. In such cases, employers should offer the option of transferring the employee to another department, if possible, as an alternative to assignment to the department where the other party to the CRA works. I leave the consideration of CRAs for managers dating subordinates in a future article as this can be a can of worms.
Workplace Precedents and What Lies Ahead
As consensual relationship agreements are a relatively recent phenomenon, it is difficult to predict with certainty whether their use will increase over time. However, the growing importance of workplace culture and the significant investments by companies in their employee value proposition suggest that workplace relationships will continue to be an area of focus. Unless the latter efforts are able to inspire a broader cultural evolution that promotes a more open and accepting workplace environment, the inevitable clash between workplace relationship policies and workplace relationship realities will likely result in a continued need for consensual relationship agreements.
The evolution of the workplace – including technological advancements that have enabled, and the COVID-19 pandemic which has accelerated, opportunities for increased workplace flexibility – has resulted in several changes to traditional workplace structures, all of which present new challenges when it comes to managing workplace relationships. For example, a flexible work environment may result in fewer opportunities for face-to-face interactions. In theory, this would lead to fewer relationships developing in the workplace, reducing the need for consensual relationship agreements. However, many organizations are now contemplating the return to in-person work. If work-from-home becomes a more permanent fixture of the standard workplace, this may instead result in a shift to less traditional workplace relationships, for example romantic or physical interactions between employees outside of working hours or from remote locations (such as on vacation).
As a result of the COVID-19 pandemic, there has also been an increase in the number of people working remotely or on a hybrid basis, which presents both a challenge and an opportunity. On the one hand , a remote or hybrid workforce may make it more difficult for employers to know what their employees are doing. Tellingly, a recent survey indicated that Canadian remote workers are more likely to engage in extramarital affairs now than before the pandemic, suggesting that the remote world has opened the door for more private and/or surreptitious interactions between employees. On the other hand, an employer may be better placed to effectively regulate a remote or hybrid workplace, particularly by ensuring that work hours are strictly enforced and by prohibiting work trips that bring employees together in locations that have traditionally presented greater opportunities for workplace relationships.
An evolving workforce also presents a significant factor in predicting the future of consensual relationship agreements. Younger workers tend to be more progressive than older generations and prioritize workplace values such as transparency, autonomy and trust. As these younger workers continue to assume leadership positions and become the primary employees in the workplace, there may be a cultural shift that results in workplace relationship policies becoming less stringent, which in turn may lessen the need for consensual relationship agreements.
Finally, it is worth mentioning that the political and social climate is also shifting. Although the #MeToo movement has resulted in increased focus on and awareness of sexual harassment and sexual assault, it is unclear how this will impact workplace relationships and consensual relationship agreements going forward. It remains to be seen whether the heightened focus on sexual misconduct will help or hurt consensual workplace relationships, for example by condoning inappropriate behaviour while limiting the extent of workplace romance.