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AVOIDING SEXUAL HARASSMENT CLAIMS -- IS IT POSSIBLE?
The "palimony" suit against actor Lee Marvin (in which he was ordered to pay to
his female housemate what would have been called alimony if they had been
married and were being divorced) was one of the first indications that times had
changed in the legal area of male-female relations. Prior to the Marvin suit,
the law did not grant a right to a woman to recover money damages for services
rendered during co-habitation without having gone to the inconvenience of having
the relationship sanctified by marriage.
However, the rights and obligations of persons who were married were spelled out
and recognized according to long established legal principles. These obligations
kicked in at the moment of marriage and they could not be varied by the parties
in any agreement made prior to the marriage. This preference for the marriage
relationship was based on the belief that the family was the basic unit of a
civilized society, and the state therefore had an interest in regulating it.
PRE-NUPTIAL AGREEMENTS
Even this time-honored "hands off marriage" principle evolved, and after a
time, pre-nuptial agreements came to be recognized [1]. These are agreements
which become effective upon marriage and which purport to govern present and
future rights on and to the property, income and earnings of the parties. And
though they may tend to take some of the romance out of the marriage and make
the relationship more of a business merger than the union of two happy people in
love, they do tend to reduce the acrimonious bickering which frequently
accompanies divorce.
In fact, the idea of simplifying matters by resorting to written agreements
before matters become too complicated has caught on.
THE OFFICE ROMANCE: A NOVEL PROBLEM
What happens when an office romance between a supervisor and a subordinate
cools? The cooling is often accompanied by disappointment and embarrassment.
Recriminations begin and a wish for revenge is born. The subordinate institutes
suit against the supervisor, alleging sexual harassment. Horrors! There's that
term again. How can this embarrassing and difficult situation be avoided?
A recent issue of the American Bar Association Journal [2] informs us that a
male supervisor who was emotionally involved with a female subordinate
considered how to avoid a potentially difficult situation if the relationship
should end badly.
THE OFFICE ROMANCE: A NOVEL SOLUTION
He consulted an attorney who considered the novel problem and suggested an equally novel solution. The attorney wisely reasoned that if pre-nuptial agreements were serving a useful purpose, why not try a "consensual relationship agreement". Why not, indeed!
The attorney suggested that the young man write to the young woman, expressing
his continuing warm and tender feelings toward her and assuring her that the
ending of their relationship, though unlikely, was possible but would not affect
her job or their working relationship. He asked her to acknowledge his letter
and agree to what he had written.
She did as requested, responding that her relationship with the young man was
voluntary, consensual and welcome, that she understood she was free to end the
relationship at any time and that the ending of the relationship would not
adversely impact upon her job.
This agreement was apparently the beginning of what has become a spate of
attempts by some cautious people to head off any suits or misunderstandings
before they occur, and while the dew is still on the rose.
Before any reader dashes off to write such a letter to his or her inamorata,
this writer would point out that agreements, whether oral or written, may be
reasonably effective in dictating what the parties are obliged to do. However,
agreements which purport to state how the parties will react to changed
circumstances have inherent and obvious flaws.
Neither the above agreement nor any other similar agreement has been tested in
the courts, as far as this writer is aware. But the uncertain state of sexual
harassment law and the potential for painful and expensive lawsuits have
prompted many to address the problem and to look for creative solutions.
SEXUAL HARASSMENT COMPLAINTS INCREASE
The Journal article reports that complaints of sexual harassment in the
workplace have more than doubled in the past six years, from 6,883 in 1991 to
15, 589 in 1997. And during the same period, damage awards have risen from $7.1
million to $49.5 million.
The fear of suits has even spawned a new type of insurance called "Employment
Practices Liability Coverage", available to employers who wish to protect
themselves from financial disaster. The coverage protects against sexual
harassment and other employment-related claims.
So how does one stay ahead of the curve in the area of sexual harassment?
Agreements? Insurance? This writer would express the opinion that it is a gross
misplacement of confidence to expect contracts and agreements to be able to
govern the future attitudes of people. And this is true no matter how extensive
and binding the agreement may appear to be.
But what does one do in the face of the very natural bubbling and boiling of
one's hormones? Most of us are incapable of clear thinking or even of exercising
common sense in such situations.
SAGE ADVICE FROM THE JUDGE
Why not the obvious solution of just not getting involved in
workplace relationships? Perhaps the wisest course of conduct is to avoid
contracts and lawyers altogether and remember the simple adage:
"Don't mix business with pleasure!"
ENDNOTES
[1] See 14-2-301 et seq. C.R.S., the Colorado Marital Agreement Act.
[2] Love's Labor Laws, Mark Hansen, Volume 84,
American Bar Association Journal, June 1998,
page 78 et seq.
NOTE: The opinions expressed in this article are the author's own and do
not necessarily reflect the opinions of the Colorado State Patrol or the
Colorado State Patrol Academy.
The above article is presented as a community service by www.sandiegolawyerforyou.com with the permission of the author.
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