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AVOIDING SEXUAL HARASSMENT CLAIMS -- IS IT POSSIBLE?

By Charles A. Riccio Jr.




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.

 

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