What's Love Got to Do With It? Issues Over Work Romances
Jerry Seinfeld once quipped: "[d]ating is pressure and tension. What is a date, really, but a job interview that lasts all night?" This could be true when considering workplace relationships. While, such an "interview" may lead to a meaningful relationship—even a life partner—it could also go awry and lead to liability for the employer and employee if there is harassment, discrimination, or "sexual favoritism." Whether or not work romances or sexual favoritism are legal will depend on the hierarchy of the relationships, facts surrounding the behaviors, the company's policy (if one exists), and the state in which the relationship takes place.
With all the inherent risks, workplace romances are in fact very popular and pose problems for employees and employers alike. In a 2013 survey by Vault.com, almost 60 percent of those surveyed admitted to having an office romance and 64 percent said that they would do it again.1 It is not surprising that the office has become a major dating scene when one considers that the average employee spends the majority of his day working, once sleeping and eating are taken into account.2
As commonplace as these romances have become, there are still fundamental issues that arise which can leave employees, especially women, vulnerable to discrimination and retaliation. The most fundamental issues occur when a supervisor and a subordinate become romantically involved.3 This issue is not lost on the public, as 34 percent of those surveyed by Vault.com found that an office romance is unacceptable when the couple involved is on "different levels."4 Clearly the power dynamic between these two individuals puts into question whether the relationship is truly welcomed and consensual.
Federal and state laws have made it clear that sexual harassment is a form of gender discrimination and therefore illegal under Title VII of the Civil Rights Act of 1964 as well as local and state laws.5 Work relationships can be a source of quid pro quo sexual harassment in situations where submission to or rejection of sexual favors is used as the basis for employment decisions or is made a condition of employment. Work relationships can also be a source of a hostile work environment which is present where inappropriate behavior is severe or pervasive.6 The key inquiry is whether the harassment resulted in a tangible employment action resulting in significant change in employment status.7
For actionable harassment to exist, a reasonable person must be able to find the work environment hostile or abusive, and the victim must perceive it to be so.8 Courts have found that the following conduct may be sufficient to show a hostile work environment: repeatedly calling an employee a "bitch" and giving her unequal work assignments9; making sexually suggestive comments about an employee's body, her clothing and the way she smelled, and leering at her10; and watching pornography in the workplace and in the presence of other employees.11
Thanks to technology, today's workplace expands beyond that of the physical office. Employees are regularly provided with access to the Internet via their work computers, personal handhelds, and iPads. Textual harassment refers to sending someone unsolicited text messages, via a phone or social media, that may be harassing in nature. In order to protect employees from such occurrences, employers should institute, update and enforce clear policies on the use of technology and communication between co-workers.
Whether the harassment is via technology or in person, what both types of harassment have in common is that the conduct is essentially not welcomed. But what if the relationship appears to be "consensual"? For example, summary judgment was granted for the employer where a plaintiff engaged in a long-term live-in relationship with her supervisor which continued even after she had left her job.12 The plaintiff, who never complained, allowed her supervisor to pay half her rent, accepted his gifts, met his parents, referred to him as her boyfriend, and continued their relationship for several months after she quit her job at the store.13
What if an employee is denied a promotion because her boss decided to promote his lover instead? Do employees have any protection in such scenarios and more importantly, can the employer be held accountable?
Thirty-five percent of those surveyed by Vault.com "felt that a co-worker gained a professional advantage because of a romantic relationship with a coworker/superior."14 Although such favoritism is clearly unfair to other employees who are overlooked for jobs or promotions, proving that such favoritism violates Title VII and other discrimination laws has proven challenging for plaintiffs. The Equal Employment Opportunity Commission, under the conservative direction of Clarence Thomas, changed its position on sexual favoritism in 1990, finding that "isolated instances of preferential treatment based upon consensual romantic relationships" is not a violation of Title VII since both men and women "are disadvantaged for reasons other than their genders."15 However, it is still a violation of Title VII where favoritism is based upon coerced sexual conduct or where there is widespread favoritism based on granting sexual favors which equates to a hostile work environment.16
In 2005, this theory of sexual favoritism perpetuating a hostile work environment was finally recognized by the California Supreme Court in Miller v. Department of Corrections under the California Fair Employment and Housing Act (FEHA).17 The 6-0 ruling reinstated a suit by two former state Corrections Department employees who accused a prison warden of having affairs with at least three subordinates, giving them favored treatment, and retaliating against the two female plaintiffs when they complained.18 The prison warden pressured the personnel committee to grant his lovers transfers and promotions for which they were not eligible or qualified.
The Supreme Court held that such widespread sexual favoritism can support a claim for sexual harassment based on a hostile work environment provided that the favoritism is "severe or pervasive enough to alter [the plaintiffs'] working conditions and create a hostile working environment."19
As a result, where favoritism in return for sexual favors is widespread in a workplace, an employee who does not welcome such conduct may bring a hostile work environment claim for sexual harassment regardless of whether or not the conduct is directed at her. Employers should no longer turn a blind eye to "consensual" relationships where the power balances are skewed and may lead to other employees being overlooked and mistreated as a result of favoritism.