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Keep Your Hand Out Of The Cookie Jar
By Tony Snyder | May 5, 2010
As we spend more time working and less time socializing outside of work, it is inevitable that romances will bloom within the workplace. This can make for a thorny legal issue for employers, particularly when they engage in the romance. Romances between supervisor-subordinate couples can potentially lead to sexual harassment/hostile work environment lawsuits.
Quid Pro Quo
Latin for “Something-For-Something,” quid pro quo harassment typically occurs when one must submit to some type of sexual conduct as a pretext to employment, or conversely, failing to engage in sexual conduct to maintain employment. Such action is expressly prohibited by Title VII of the Civil Rights Act of 1964 (at the federal level) and by the Elliott-Larsen Civil Rights Act (at the state level).
But what does it mean if the supervisor and subordinate are merely dating, with no quid pro quo necessary? The answer is … it depends! If the supervisor chooses to promote his or her paramour over other equally qualified employees, no harassment or sex discrimination exists. While this may be a poor business decision, and not one I would recommend to any client, technically there is no discrimination as it was not based on anyone’s status as a man or woman. Those not selected were merely rejected out of hand because they were not favored by the decision maker, which is not unlawful. You might even liken it to nepotism whereby the owner of the company promotes his slacker nephew.
If, on the other hand, the employer is coercing employees for sexual favors for the job promotion, then that clearly is an example of quid pro quo and that does open the employer up for a sexual harassment lawsuit.
Hostile Work Environment Harassment
As prohibited by the Elliott-Larsen Act, employers may not create a “hostile work environment.” But to know if it’s occurring, it’s important to know exactly what it is. This is conduct that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating at intimidating, hostile or offensive working environment.
There is a two-prong approach the employee must prove: 1) that the conduct is unwelcome and because of the Plaintiff’s sex, and 2) the conduct must be sufficiently severe/pervasive to alter the terms and conditions of a victim’s employment and create an abusive working environment.
But again, just like quid pro quo, showing favoritism to a paramour typically will not constitute a hostile work environment—particularly for the paramour’s co-workers. However, where there is widespread favoritism toward a paramour, this might constitute hostile work environment harassment for the paramour’s co-workers. The key factors here look to see whether there has been widespread affairs, little attempt to cover up the trysts and more qualified employees being passed over because they were not a part of the employer’s trysts.
Claims Related to Termination of the Relationship
What about after the relationship between employer/employee goes south? This can be tricky because this is when the employee is most likely to allege there was coercion. Surely if the employer presses the employee to continue the sexual relationship, and the employer takes adverse job action against employee, this leaves the employer to great liability. However, what if the employer takes adverse job action toward the former paramour because of animosity? The courts have ruled that this is quid pro quo harassment. The rationale by the courts is that the employer is taking this action not because of the paramour’s sex, but because of anger about the end of the relationship.
Practically speaking, stay away from employer/employee relationships as much as possible. Even if you don’t run into any legal problems, you certainly face the growing strain of inter-office gossip, loss of morale, reduced productivity, and loss of respect for employer or employee. We have only touched on a few of the legal consequences within the posting, so please don’t think this is all encompassing. It’s not. It’s just the tip of the iceberg that is sexual harassment.
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