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Letter of the Law

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by Mark Powell

The May 25-31 issue of the Business Journal included an article authored by Richard Ollis titled "Sexual harassment issue spurs preventive policies."

Ollis' article was excellent in its outline of the typical types of sexual harassment found in the workplace. In addition, his ideas for employers to reduce or eliminate sexual harassment were right on target.

Another article found in the June issue of the American Bar Association Journal, written by Mark Hansen and titled "Love's Labor Laws," describes an additional, more novel approach that is also being used by employers to prevent claims for sexual harassment.

Hansen writes about a young, single supervisor who became involved with a subordinate at work. The relationship was going well, but the young man was still worried about a claim for harassment if the relationship were to end.

At the advice of counsel, the young man wrote a letter to his girlfriend explaining his concerns and asked her to sign the letter acknowledging that she agreed to its contents.

The letter read: "I know that this may seem silly or unnecessary to you, but I really want you to give very serious consideration to the matter as it is very important to me. I want to assure you that under no circumstances will I allow our relationship or, should it happen, the end of our relationship, to impact on your job or our working relationship."

Believe it or not, his girlfriend wrote back, "My relationship with (the man) has been and is voluntary, consensual and welcome. I also understand that I am free to end this relationship at any time and, in doing so, it will not adversely impact on my job."

This type of informal agreement has become known in legal circles as a consensual relationship agreement. Hansen describes one lawyer's reaction to such agreements as "overkill."

However, other attorneys believe that if an employer knows of and allows office relationships, then the employer is just asking for trouble.

If you know of a relationship in your workplace, consider adding this type of agreement to your arsenal of preventive measures, including a strong statement against sexual harassment, a procedure for reporting sexual harassment, and a well-defined disciplinary procedure for those found to be involved in sexual harassment.

How Missouri or federal courts will view the consensual relationship agreement is unknown, but it is one additional way to help prevent potentially embarrassing and very costly litigation.

The context in which sexual harassment and its prevention is raised is often embarrassing. It is easy to ignore the issue because of the difficulty in choosing the "right" words or phrases when discussing sexual harassment.

Do not shy away from the issue. Have staff meetings on at least an annual basis to discuss these types of issues. If you, as the employer, feel uncomfortable taking the lead in the discussion, ask an outside third person, your attorney, insurance agent, counselor or facilitator, to meet with your staff and let them know that sexual harassment will not be tolerated in your work environment.

Don't continue to think that sexual harassment cannot happen in your business.

(Mark Powell is a practicing attorney with the Springfield law firm of Miller & Sanford. Information and opinions expressed in the "Letter of the Law" column should not be construed as legal advice. For counseling on specific legal situations, please consult an attorney.)

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