Should David Letterman Have Signed a "Love Contract?"

Once the shock of the David Letterman - Robert 'Joe' Halderman blackmail attempt began to wear off --sometime around Friday evening-- the conversation turned to sexual harassment. From commenters on blog posts to cable news shows, people wanted to know if Letterman and CBS could find themselves at the end of a sexual harassment lawsuit because of Letterman's on-air confession that, "Yes I have. I have had sex with women who work on this show."

"Not enough information is available," says Lisa Stratton, associate clinical professor, and director of the University of Minnesota Law School's Workers' Rights Clinic. "If the woman welcomed the relationship, it would not be illegal."

That legal judgment probably comes as a surprise to many who are under the wrong assumption that when a person in power engages in a sexual relationship with a subordinate it automatically falls into the category of sexual harassment.

It does not. In order for a situation to qualify as a sexual harassment case,  the relationship has to be "unwelcome."

If the Letterman sex scandal does anything, it reignites a conversation about corporate policies around fraternization- a conversation that seems to have gone silent over the past few years.

"Ten years ago it did seem companies were quite concerned about paramour preference and there was a lot of talk about how smart it would be for companies to have anti-fraternization policies," says Jill Gaulding, an associate of Stratton's, and a visiting associate professor at the University of Minnesota Law School. "In recent years I haven't personally come across any company enforcing that policy. Perhaps it's just gone out of style." Gaulding, ever the attorney, emphasized this was a personal, subjective impression.

In the fall of 2005, I was asked to write the cover story for the February 2006 edition of Women's Business Minnesota. The topic was office romance. Unfortunately, just a week or so after I handed in the story, the magazine folded. I published Smooching On The Clock, the would-be cover story, on my blog on February 14, 2006.

“Lou dates Mary” was episode 167-- the next-to-last episode of the long-running Mary Tyler Moore program ( 1970-1977). In the episode, Mary has yet another disastrous date, and shares with her friend Georgette that she wonders if she’ll ever find Mr. Right. Georgette then points out that Mary has known Mr. Right all along. With some encouragement Mary asks Mr. Grant (her boss) for a date. The year was 1977, and while Mary and Lou didn’t get beyond a very innocent kiss before realizing that dating each other was not such a good idea, the writers of the show didn’t have to deal with the potential ramifications that could arise when employees begin a romance because it was the presexual harassment era. In 1977, when that episode first aired, it would still be another nine years before the U.S. Supreme Court actually recognized the concept of sexual harassment. And, it wouldn’t be until 1998 ─ nearly twenty years after Mary and Lou exchanged that awkward kiss ─ that the Supreme Court ruled businesses could be held liable if sexual harassment occurred in their workplace. With that ruling, businesses may have become more concerned about the potential risk of office romances, but the ruling has neither created a flurry of new policies about office romances and it certainly hasn’t discouraged them. In fact, the opposite is true—office romances are on the rise, and corporations are dragging their feet when it comes to dictating policy and procedure on dating.

On average, about 50% of all office romances fail. It's in those failed relationships where corporations become vulnerable to sexual harassment lawsuits. To protect corporations from that possibility, the Love Contract was created.

"Think of it in terms of a prenup," said Good Morning America workplace contributor Tory Johnson. "In this particular case, you're saying to the employer, 'We'll prevent you from being held responsible for employment issues in the event of a failed personal relationship.' The employer should not have that burden."

While there are companies that use love contracts, it is certainly not the norm. As part of my research for that Office Romance article I interviewed Teresa Thompson, an employment attorney with the Minneapolis law firm Parsinen Kaplan Rosberg & Gotlieb P.A.

Thompson believes the lack of dating policies is a problem. “Only about 25% of companies have policies regarding fraternization between employees. Others may have an unspoken policy about dating people that you are not directly supervising, but most do not. "While that may surprise many, Thompson says the lack of policies is rooted in a tradition where historically businesses have wanted to stay out of people’s private lives.

Stratton and Gaulding agree saying that we don't want a legal system that makes it illegal to fall in love at work.

What about all those other women in the office who didn't have an affair with Letterman? Do they have any legal recourse in the event that he showed "paramour preference"to his lovers? The experts say probably not. While paramour preference may be distasteful for those who have to work around it, our legal system says it's not unlawful.

Because preferring a paramour discriminates against all non-paramours of both sexes (it is discrimination because of an existing romantic relationship, not discrimination because of the sex of the paramour or even the sex of the complaining employee), such romances are not covered by Title VII.

In the coverage of the David Letterman case, CNN reported they had contacted CBS about their sexual harassment policies. According to the CNN report, CBS indicated it did have a policy about sexual harassment and that David Letterman did not violate it. Stratton and Gaulding say it's actually not a great idea for companies to have anti-fraternization policies because then they have to figure out how they are going to enforce that policy. That's not easy. Imagine a blackmail attempt on a station manager in Boise or Richmond for having sex with employees. It wouldn't be surprising to hear the station manager was fired for that conduct. Now, if CBS had an anti-fraternization policy they would be obligated to treat all employees the same way for the same misconduct. Without the fraternization policy, each situation can be handled on an individual basis.

Here are what others are saying about Letterman and the potential of a sexual harassment lawsuit:

The Divorce Saloon: The Letterman sexgate files will not lead to sexual harassment charges or divorcee

NJN Network: Did Letterman's celebrity just make workplace sexual harassment a joke?

Althouse: Is it really so terrible that David Letterman has a bachelor pad in the building where he tapes his show?

Elana blogs about business culture atFunnyBusiness