Click here for an interesting item on the Harvard Business Review site entitled How Sex Hurts the Workplace, Especially Women.

The basic premise: workplace sex doesn’t just hurt the parties directly involved — it can also have collateral damage on the careers of high-achieving female employees who had nothing to do with the harassment.

Brand new research by the Center for Work-life Policy indicates that a woman will most likely fail to achieve executive status “unless she is sponsored by a powerful senior executive — who, more often than not, is male and married.” As the article points out, that is often “where sex enters the picture.”

Some of the key findings:

• 34% of executive women say they know a female co-worker who had an affair with her boss
• 15% of women at the director level or above say they had such an affair themselves
• 37% of those who know of an affair believe that the woman received a “career boost as a consequence”
• 70% of women (versus 61% of men) lose respect for a leader who has an affair
• 56% of women (48% of men) feel “animosity” toward the couple involved
• 65% of women (60% of men) believe that salary increases and other perks are traded for sexual favors
• 37% of women (39% of men) see a productivity drop in the wake of a workplace affair

What Should Employers Do?

You don’t have to be the workplace romance police. However, you absolutely should:

• have a policy that (1) clearly prohibits all forms of unlawful harassment and (2) contains a clear mechanism for reporting potential violations, including alternate paths when the alleged harasser is the complaining party’s boss;
• train all employees on the policy, with a special emphasis for managers on the dangers of workplace romance (particularly of the boss-subordinate variety);
• fully investigate all complaints of harassment, even if (1) the alleged harasser asks you not to and (2) the allegations are against the head of the company or a “superstar”-type employee;
• if the investigation warrants disciplinary action, take it (even if it means firing the CEO or superstar); and
• carefully consider any and all communications related to the investigation, particularly if they concern a high-profile employee (and discuss them with experienced legal and PR counsel).

If an employer fails to take any of the above action , it could easily wind up in court — possibly in a class action — and face humongous morale and productivity problems. Don’t let that happen to you.

To help ensure that you cover all the investigation bases, click here for our handy Investigation Toolkit. Click here for our handy “cheat sheet” on harassment law.

As practically everyone in the world now knows, last week talk show host David Letterman publicly admitted that he has had sex with “women who work for [him] on the show.”

Background

Click here to see Letterman’s on-air remarks, courtesy of CBS.

One comment Letterman made that has grabbed the attention of employment lawyers and HR gurus is that he hopes to “protect [his] job.” He has a right to be concerned.

Most companies have policies that restrict boss/subordinate relationships. According to sources, CBS — like many employers — has a policy requiring disclosure of such relationships in an effort to avoid conflicts of interest. It reportedly states:

If a consenting romantic or sexual relationship between a supervisor and a direct or indirect subordinate should develop, CBS requires the supervisor to disclose this information to his or her Company’s Human Resources Department to ensure that there are no issues of actual or apparent favoritism, conflict of interest, sexual harassment, or any other negative impact on others in the work environment.

It’s unknown whether Letterman disclosed the relationships to CBS’ HR Department. CBS issued a statement saying only that: Mr. Letterman addressed the issue during the show’s broadcast, and we believe his comments speak for themselves.”

The Bottom Line: Letterman could face potential disciplinary action from his employer if he failed to disclose the relationships. Letterman, CBS and/or Letterman’s rather ill-named production company Worldwide Pants could face several harassment claims with very limited defenses given Letterman’s position of authority. The company could also face discrimination/conflict-of-interest claims from employees who didn’t sleep with Letterman, alleging that they were treated less advantageously.

Letterman’s Not Alone

Several other high-profile personalities have faced big-$$$ lawsuits related to alleged workplace romances in recent years. Bob Barker of The Price is Right fame faced an $8 million sex harassment suit that was dropped after he admitted having a relationship with a female employee. Bill O’Reilly of Fox News settled a harassment suit brought by a female employee who claimed they had phone-sex conversations. Dov Charney, the high-flying CEO of American Apparel, has faced at least four sex harassment claims brought by female employees.

What Should Employers Do?

How can you avoid something similar happening to your company? Here are some simple tips:

• have a policy that (1) clearly prohibits all forms of unlawful harassment and (2) contains a clear mechanism for reporting potential violations, including alternate paths when the alleged harasser is the complaining party’s boss;
• fully investigate all complaints of harassment, even if (1) the alleged harasser asks you not to and (2) the allegations are against the head of the company or a “superstar”-type employee;
• if the investigation warrants disciplinary action, take it (even if it means firing the CEO or superstar); and
• carefully consider any and all communications related to the investigation, particularly if they concern a high-profile employee (and discuss them with experienced legal and PR counsel).

To help ensure that you cover all the investigation bases, click here for our handy Investigation Toolkit. Click here for our handy “cheat sheet” on harassment law.

What Should Employees Do?

Unless you want to end up facing a grand jury, avoid the extortion route. Instead, report the conduct promptly using the procedure outlined in your company’s anti-harassment policy. If your company has no such policy, go see your HR representative. Provide all the facts of which you are aware and cooperate fully with the investigation.

Click here for another employment lawyer’s take on this issue and here for a rather creative “top ten” approach one writer suggests for Mr. Letterman.

In honor of Valentine’s Day, we conducted a poll to get your thoughts on the hot topic of love contracts.

What’s a Love Contract?  To protect itself from liability, an employer requires romantically intertwined employees to sign an agreement stating that (1) the relationship is 100% welcome, voluntary and consensual and (2) they will fully comply with the employer’s anti-discrimination and anti-harassment policies, including immediately reporting any and all harassment, avoiding nepotism/favoritism and working in a professional manner at all times.

The Vote.  The people have spoken.  Of the 165 voters in our poll, 100 (61%) said love contracts are a bad idea.  Only 65 (39%) believe they’re a good idea.  That’s a marked difference from the same poll we conducted last year, which had a perfect 50-50 split.

My Thoughts.  My rather negative view of love contracts was captured nicely in this article from last week’s Chicago Sun-Times.  In short, it seems to me that love contracts are a form of over-lawyering that basically forces HR to act as the love police.  Effectively and consistently enforce your anti-harassment policies and you should be just fine.

One can easily imagine the following conversation taking place in a company that adopts a love contract policy:

HR:  Hello, Greg.

Greg:  Hello.

HR:  I heard you’re dating Marcia.  Is that true?

Greg:  No, actually I’m dating Alice.

HR:  Oh, really?  I thought Sam was dating Alice.

Greg:  No, he’s dating Carol now.

HR:  Hmm.  I thought Carol and Mike were married.

Greg:  Did you hear that Bobby’s dating Cindy?  And that Jan’s dating Peter?

HR:  I quit.  (Hands him a stack of love contracts.)  Congratulations — you’re our new Head of HR.  Get everyone to sign one of these.

Don’t let that happen to you.

Now that quite a few of you have voted, here’s a second article from today’s Chicago Sun-Times with my views on love contracts.  Didn’t want to unnecessarily taint the vote by airing my thoughts too early.

Enjoy!

A few weeks ago, we had some spirited discussions on office romance and whether “love contracts” are a good idea.  Today, Newsweek.com ran a story exploring those topics in detail and was kind enough to quote yours truly.  Click here for the story.

The article discusses love contracts at length and offers some expert legal opinions suggesting they’re a good idea.  When we asked our readers what they think, we got an even 50-50 split for and against.  But virtually everyone who offered a comment on the topic was dead set against ‘em.

To sum up my feelings on this issue, here’s the quote from the Newsweek article:

Consensual relationship agreements are just another case of “overlawyering,” says Mark Toth, the chief legal officer for Manpower North America, an outplacement and employment services company based in Milwaukee. “It forces [employers] to become the love police, consistently enforcing who’s dating whom,” Toth says. And he’s not sure if such contracts will necessarily protect companies from litigation. A subordinate signing a love contract might claim that he or she signed under duress or that harassment began after the contract was signed.

In honor of Valentine’s Day, we conducted a poll to get your thoughts on the hot topic of love contracts.

What’s a Love Contract?  To protect itself from liability, an employer requires romantically intertwined employees to sign an agreement stating that (1) the relationship is 100% welcome, voluntary and consensual and (2) they will fully comply with the employer’s anti-discrimination and anti-harassment policies, including immediately reporting any and all harassment, avoiding nepotism/favoritism and working in a professional manner at all times.

The Vote.  Illustrating the divided opinions on this topic, the vote was a perfect 50-50 split, with half of you saying that love contracts are a good idea and half saying they ain’t.

Your Comments.  Several prominent attorneys weighed in on the subject . . .

Eric Welter called love contracts “a sign of a confused and overlawyered society.”  

Jon Hyman said:  “If the company is not going to prohibit intra-office romances per se, than anything that would be covered by a “Love Contract” should be already covered by a company’s anti-harassment policy. It seems like overkill to have employees sign off on such a document when they are already bound by the harassment policy.”

Joel Spitz added:  “While there may be some upside to love contracts, there’s also a distinct downside because, assuming that the company has in place an appropriate anti-harassment policy, all employees should already be bound by that policy.  If the company doesn’t consistently have all employees who are romantically involved sign a love contract it could undercut the effectiveness of the anti-harassment policy.”

The rather interestingly named HR Wench voiced her agreement with the above.

My Thoughts.  Echoing those comments, it seems to me that love contracts basically force the HR Department to act as the love police.  Effective and consistently enforced anti-harassment policies should already address most of the concerns. 

One can easily imagine the following conversation taking place in a company that adopts a love contract policy:

HR:  Hello, Greg.

Greg:  Hello.

HR:  I heard you’re dating Marcia.  Is that true?

Greg:  No, actually I’m dating Alice.

HR:  Oh, really?  I thought Sam was dating Alice.

Greg:  No, he’s dating Carol now.

HR:  Hmm.  I thought Carol and Mike were married.

Greg:  Did you hear that Bobby’s dating Cindy?  And that Jan’s dating Peter?

HR:  I quit.  (Hands him a stack of love contracts).  Congratulations — you’re our new Head of HR.  Get everyone to sign one of these.

Thanks for expressing yourselves in our most recent polls. Here’s what you had to say . . .

Workplace Romance Bans a Thing of the Past? In response to a New York Times article suggesting that workplace romance prohibitions are on their way out, we asked for your thoughts.

Looks like you don’t agree with the Times (we don’t either). 51% of you reported that workplace romances still make you break out in hives. 25% are neither for nor against workplace romance. A grand total of 0% said that workplace romances are an important employee benefit.

More importantly, 24% of you indicated that you don’t particularly care about your own office but that the recent revelation that Jim and Pam of NBC TV’s The Office are dating was “a mistake” because it “released the underlying dramatic tension that propelled the show’s plot forward.” We agree.

EEOC: Too hard, too soft or just right? In another poll ripped from today’s headlines, we followed up recent accusations that the EEOC under President Bush is too soft on employers by asking what you think.

Again, you disagreed.

47% of you said that the EEOC is too hard on employers. Only 20% said that the EEOC is too soft. 33% said the EEOC is “just right.”

Thanks again for your input! We’ll post a new poll soon.