Tuesday, January 14, 2014

Hating the “Love Clause”

Alabama State University is taking flak over the employment agreement it recently inked with its new president, Gwendolyn Boyd. No one seems concerned with the size of Dr. Boyd’s salary and benefits. It is the clause restricting her ability to have slumber parties that is turning heads. The agreement provides that “…so long as Dr. Boyd is president and a single person, she shall not be allowed to cohabitate in the president’s residence with any person with whom she has a romantic relation.”

Given the role college and university presidents play in wooing big donors and serving as chief executives of their institutions, it is understandable why regents and trustees would have concerns over maintaining a respectable public image. While these interests certainly make some aspects of presidents’ off-duty conduct fair game, most agree that the so-called "love clause" in Dr. Boyd’s contract is out of bounds. Absent rigging the president’s home with hidden cameras, it is hard to imagine how an employer could prove that its employee is cohabitating with a person with whom he or she is engaged in a romantic relationship. Even more concerning than the difficulty in proving a breach, however, is the likelihood of such contracts running afoul of legal obligations.

In Minnesota, such an agreement would likely violate law prohibiting marital status discrimination. Under the Minnesota Human Rights Act, marital status refers to “whether a person is single, married, remarried, divorced, separated, or a surviving spouse and, in employment cases, includes protection against discrimination on the basis of the identity, situation, actions, or beliefs of a spouse or former spouse.” By restricting Dr. Boyd’s ability to cohabitate with another person with whom she is romantically involved as a “single person” and permitting her to have such relationships if she is married, Dr. Boyd’s contract appears to discriminate on the basis of her marital status. The contract also seems problematic in that it fails to adequately cover the types of scandalous or immoral conduct the University was likely intending to prohibit. The contract only restricts conduct while she remains single, so presumably if she marries she can cohabitate with whomever she has a romantic relationship, regardless of whether the person is her spouse. In addition to looking silly, the way this provision is drafted makes it all the more likely that it would be deemed to violate marital status discrimination laws.

Employers walk a fine line when taking an interest in employees’ off-duty conduct.  In addition to anti-discrimination laws, there are many other legal protections that can be implicated: lawful consumable products laws protect employees’ right to drink, smoke and imbibe lawful goods; the National Labor Relations Act protects employees’ right to complain about their jobs and engage in concerted activities outside of work; and more and more states are passing laws to keep employees’ social media activities off limits.  Employers should make sure they know these boundaries before making employment decisions based upon non-work-related activities.

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