It seems almost weekly we hear or read about another executive who ends up in hot water because his or her workplace romance cooled down.While the executive has the power in the workplace, the power dynamic shifts 180 degrees in the courtroom.
Risks Of Workplace Romance
As we all know, there are two kinds of sexual harassment:quid pro quo and hostile work environment. Supervisory-subordinate dating, or attempts at same, can result in both kinds of harassment claims in at least six common scenarios:
1. Supervisor asks a subordinate for a date. Subordinate says no. Supervisor asks again. Problem: no means no.
2. Supervisor asks a subordinate for a date. Subordinate says "I'm busy." Supervisor hears "ask me another time" so the supervisor asks again. Problem: subordinate meant "I'd rather die."
3. Supervisor asks a subordinate for a date. Subordinate says no. Supervisor does not ask again, but subsequently takes adverse action against subordinate (e.g., discipline) for legitimate reasons. Problem: subordinate perceives adverse action to be retaliatory.
4. Supervisor asks a subordinate for a date. Subordinate says yes. They love each other until they detest each other. Problem: subordinate claims that, while she participated in the affair, it was not welcome.
5. Supervisor asks a subordinate for a date. Subordinate says yes. They date until they don't. Problem: subordinate claims that, while the affair was welcome, the supervisor is retaliating against him for ending it.
6. Supervisor asks a subordinate for a date. Subordinate says yes. They fall in love and remain in love. There's no question that the relationship is entirely welcome. So, what's the problem here? Can others bring a claim?
EEOC's Position On Sexual Favoritism
In 1990, the Equal Employment Opportunity Commission (EEOC) published guidelines on sexual favoritism, establishing the general rule that isolated sexual favoritism does not violate Title VII. The theory is that the favoritism is not based on sex but on the sexual relationship. More specifically, where a manager favors a paramour, women and men alike are disadvantaged, so the disadvantage is not due to sex.
This analysis has been applied in numerous cases holding that paramour preference is not unlawful. See Wilson v. Delta State University, Civil Action No. 04-60759 (5th Cir. 2005) ("where an employer discriminates in favor of a paramour, such an action is not sex-based favoritism, as the favoritism, while unfair, disadvantages both sexes alike for reasons other than gender").
But what if the romance is not voluntary or there is not "an" ongoing romantic relationship but rather multiple relationships?
The EEOC guidelines answer these questions and recognize two distinct exceptions to the general rule.
The first exception is where the sexual relationship is "coerced." In these circumstances, others who are qualified but disadvantaged by the favoritism may bring a viable harassment claim. For example, if Alex awards a benefit to Randy because of coerced sexual relations, others who are qualified for the benefit may have viable claims.
The second exception is where the sexual favoritism is so widespread that the message conveyed is that women (or men) are "sexual playthings." Where this message is conveyed, it creates a hostile work environment for women and men alike.
The EEOC went further and stated that where sexual favoritism is pervasive, it also may create the basis for an "implicit quid pro quo claim." The rationale is that widespread sexual favoritism may communicate that the "way for women to get ahead in the workplace is by engaging in sexual conduct, or that sexual solicitations are a prerequisite to their fair treatment."
These exceptions were adopted by the California Supreme Court in Miller v. Department of Corrections, 36 Cal. 4th 446, 30 Cal. Rptr. 3d 797, 115 P.3d 77 (2005). In Miller, the manager was having affairs with three subordinates who appeared to have been advantaged by virtue of their relationships with him. The court held that there were sufficient facts to go to a jury to determine whether the relationships created a message in the workplace that the key to advancement was through sexual conduct.
The bottom line is that no good can come from romance between a supervisor and a subordinate. For this reason, some employers prohibit supervisors from dating, or attempting to date, employees over whom they have authority.
If an employer goes this route, it should consider not only direct reports but also others over whom he or she has institutional authority.
In developing such a policy, the employer must ensure that it does not discriminate on account of protected status. For example, in New Jersey, marital status, domestic partner status and civil union status all are protected. If a New Jersey employer were to use its policy to punish adulterers while allowing unmarried persons to date their subordinates, the employer may be violating a state non-discrimination law.
Where prohibition, if applied consistently, may help to avoid claims, it may not be seen as workable or fair. We all complain about working day and night. Does that mean that if you cannot date people with whom you work, you cannot date at all?
An absolute prohibition may only serve to keep relationships underground, which ironically may increase the employer's ultimate legal risk.
In the seminal case on this issue, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court of the United States held that the plaintiff could proceed with her sexual harassment claim even though she admittedly had sexual intercourse with her manager between 40 and 50 times. Per Justice Rehnquist, the issue was not whether the intercourse was "voluntary" but rather if it was "welcome."
While discussions about such relationships do not immunize an employer from claims that the relationship is unwelcome, they provide evidence that may be persuasive with a jury. Accordingly, a prohibition on workplace dating may not end the dating but rather encourage covert dating without overt evidence that such dating is welcome/ consensual.
This is not to suggest that employers should not prohibit supervisory-subordinate dating. It is to suggest only that it may be difficult to ensure that the paper policy is a workplace reality, and that there are real risks in having a disconnect between the policy and the practice.
An alternative would be to recognize that relationships happen and require a report of them. The burden to report should be on the supervisor.
In order for a reporting policy to have teeth, it would need to provide sanctions for the failure of a supervisor to report and address what happens after a report is made.
Ideally, there should be a change in the reporting relationship. Where this is not possible, there should be oversight of any employment decision by the supervisor with regard to his or her paramour.
Where a change in the reporting relationship is possible, the question becomes whose position should be changed. Since men hold a disproportionate number of supervisory positions (or are disproportionately more likely to date subordinates) in many companies moving the subordinate as a matter of course may have a disparate impact on women.
To avoid this, some may be tempted to require that the supervisor rather than the subordinate be moved. This minimizes the legal concern about gender bias but may not be operationally practical or desirable, depending on who the supervisor is and the size of the employer.
Employers should avoid adopting rigid per se rules. Instead, look at each case, and balance legal and business considerations.
Where a report is made, HR can and should provide the supervisor with some guidelines for his or her conduct going forward. For example: no public displays of affection; no discussions of your relationship with other subordinates; no pressure on the subordinate to stay in the relationship if he or she wants out; no adverse action against the subordinate if he or she ends the relationship; etc.
In response to a report, HR can and should meet the subordinate. In this discussion, HR should confirm that the relationship is entirely consensual and welcome. While this does not prevent a quid pro quo claim down the road (for which there is strict liability), it would constitute strong evidence inconsistent with that claim.
HR also can and should provide the subordinate with a mirror image of the guidelines given to the supervisor, and stress that the employee should contact HR immediately if they want out of the relationship and feel pressure to stay in, or if they get out and feel there is retaliation of any kind.
If an employer neither prohibits nor requires reports, then, at a minimum, it should dissuade supervisory-subordinate dating in training. To the extent supervisors understand the risks, they are less likely to go down that road.
Of course, if HR receives complaints about or otherwise becomes aware of sexual favoritism, displays of public affection or the like, immediate corrective action should be taken, even if the incident is isolated and not widespread. Such actions are undeniably offensive with the concomitant costs on employee relations and loyalty/productivity.
Which of these approaches should an employer select? As almost always, there is no one-size-fits-all. Assess the corporate culture to see what will work.
In deciding what to do, we can neither embrace nor ignore the fact that a culture is libidinous. Ignoring this reality may cost our credibility to the extent we promulgate policies that everyone knows are violated. This risk is even greater if the violations are by those at the top.
Conversely, if we accept this reality and develop policies and practices that permit workplace romances to thrive, litigation is a likely by-product of the culture. At a minimum, it is bad business.
Author's Note: This article should not be construed as legal advice or as pertaining to specific factual situations.
Jonathan A. Segal is Co-Chair of WolfBlock's Employment Services Practice Group and managing principal of the WolfInstitute, the training and educational arm of the Employment Services Group. He focuses his practice on preventive counseling, policy development, contracts and manuals, traditional labor issues, adversarial proceedings and governmental investigations.