Labor E-Bulletin - Consensual Sexual Affairs and Illegal Sex Discrimination
August 26, 2005
Sexual affairs in the workplace--even consensual--can bring on litigation. One way is the “traditional” way--one party says it stopped being consensual.
But there are other ways. In a recent case, two (uninvolved) employees sued because their manager had sexual affairs with several other employees. These created, they said, a “hostile work environment” because the affairs conveyed the “demeaning message” that female employees were “sexual playthings.” The women who had affairs with the manager bragged that this was why they got promoted, and the manager, citing his relationship, refused to act on a complaint that one of his paramours had assaulted another employee.
The case arose in California, where the manager was a warden of a state prison. The state supreme court agreed with court decisions from around the country holding that an isolated instance of sexual favoritism would not support a sex discrimination claim. The court announced, however, that “widespread” sexual favoritism can create a hostile work environment for both women and men.
“Widespread” sexual favoritism can call into question all employment decisions made concerning employees who do not engage in consensual sexual conduct but are subject to the same supervision. The California court specifically found that the two female employees who complained were disadvantaged by the sexual favoritism shown to others.
Although this case arose under California state law, the court said federal law dictated the same result.
Studies indicate that more than half of America’s workforce have been involved in at least one workplace romance, so it may not be easy to determine when sexual favoritism moves from being isolated to being “widespread” at a particular workplace. Encouraging employees to report their workplace relationships may aid senior management in ensuring that no objectionable conduct or favoritism occurs, but many employers understandably do not want to intrude on their employees’ privacy.
On the basis of the recent California case and developing law, senior management should increase their awareness of issues relating to personal relationships in the workplace and watch for patterns of employment actions suggesting the existence of sexual favoritism or other objectionable conduct.
Employers should give careful thought to policies concerning personal relationships between employees. Employers who do not have but wish to adopt specific policies concerning personal relationships in the workplace are strongly encouraged to consult counsel in order to ensure that all the issues which may arise can be considered and the proper language, given the culture of the organization, can be developed. Such policies can vary to meet the size and needs of the particular organization and its vulnerabilities.
We at Taft Stettinius & Hollister LLP are pleased to help in this process.
But there are other ways. In a recent case, two (uninvolved) employees sued because their manager had sexual affairs with several other employees. These created, they said, a “hostile work environment” because the affairs conveyed the “demeaning message” that female employees were “sexual playthings.” The women who had affairs with the manager bragged that this was why they got promoted, and the manager, citing his relationship, refused to act on a complaint that one of his paramours had assaulted another employee.
The case arose in California, where the manager was a warden of a state prison. The state supreme court agreed with court decisions from around the country holding that an isolated instance of sexual favoritism would not support a sex discrimination claim. The court announced, however, that “widespread” sexual favoritism can create a hostile work environment for both women and men.
“Widespread” sexual favoritism can call into question all employment decisions made concerning employees who do not engage in consensual sexual conduct but are subject to the same supervision. The California court specifically found that the two female employees who complained were disadvantaged by the sexual favoritism shown to others.
Although this case arose under California state law, the court said federal law dictated the same result.
Studies indicate that more than half of America’s workforce have been involved in at least one workplace romance, so it may not be easy to determine when sexual favoritism moves from being isolated to being “widespread” at a particular workplace. Encouraging employees to report their workplace relationships may aid senior management in ensuring that no objectionable conduct or favoritism occurs, but many employers understandably do not want to intrude on their employees’ privacy.
On the basis of the recent California case and developing law, senior management should increase their awareness of issues relating to personal relationships in the workplace and watch for patterns of employment actions suggesting the existence of sexual favoritism or other objectionable conduct.
Employers should give careful thought to policies concerning personal relationships between employees. Employers who do not have but wish to adopt specific policies concerning personal relationships in the workplace are strongly encouraged to consult counsel in order to ensure that all the issues which may arise can be considered and the proper language, given the culture of the organization, can be developed. Such policies can vary to meet the size and needs of the particular organization and its vulnerabilities.
We at Taft Stettinius & Hollister LLP are pleased to help in this process.
