Dangerous Liaisons-HR Magazine

For workplace sexual conduct to constitute prohibited sexual harassment, it generally must be unwelcome. If it’s welcome, the conduct still may be inappropriate for the workplace, but usually it’s not unlawful.

Nevertheless, the California Supreme Court recently ruled in Miller v. Department of Corrections, S114097 (2005), that completely consensual workplace romances can create a hostile work environment for others in the workplace. Has California yet again created new legal rights, significantly expanding the scope of unlawful sexual harassment? Not really. In reaching its decision, the state’s highest court did nothing more than apply the Equal Employment Opportunity Commission’s (EEOC) 1990 guidelines on sexual favoritism to egregious facts.

So what’s new? Not much, but the challenges of dealing with the “old” are very real, and a zero tolerance policy toward boss-employee bundling is not necessarily the answer to all your problems.

To try to put the decision in perspective, this article provides a general discussion of the Miller case, an overview of the legal issues arising from the perennial problem of supervisor-subordinate workplace romance—especially when the bloom is off the rose—and practical recommendations for addressing them without drawing blood.

Picture the Problems

Here’s a series of snapshots exposing the risks of dating, or attempts at dating, between a supervisor and a subordinate:

Take 1. Supervisor asks subordinate for a date. Subordinate says, “No.” Supervisor asks again.

Problem: “No” means no.

Take 2. Supervisor asks subordinate for a date. Subordinate says, “I’m busy.” Supervisor hears, “Ask me another time,” so supervisor asks again.

Problem: Subordinate means “I’d rather die.”

Take 3. Supervisor asks subordinate for a date. Subordinate says, “No.” Supervisor does not ask again. However, supervisor later takes adverse action against subordinate for legitimate reasons.

Problem: Subordinate perceives adverse action to be retaliatory.

Take 4. Supervisor asks subordinate for a date. Subordinate says, “Yes.” They love each other until they hate each other.

Problem: Subordinate claims that, although she participated in the affair, it was not welcome.

Take 5. Supervisor asks subordinate for a date. Subordinate says, “Yes.” They date until they break up.

Problem: Subordinate claims that, while the affair was welcome, the supervisor is retaliating against him for ending it.

Take 6: Supervisor asks 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.

Problem: No problem, so long as the consensual affair is isolated. But what if the supervisor is having more than one consensual affair? Or, what if more than one supervisor is having a consensual affair? Now, we have a problem.

California Dreamin’ …Er … uh … Nightmare

It’s hard to imagine worse allegations than those set forth in Miller. The plaintiffs were two former employees of the Valley State Prison for Women. The issue before the California Supreme Court was whether the lower court’s grant of summary judgment in favor of the defendants was proper. Because of the procedural posture of the case, the court essentially accepted the plaintiffs’ allegations as true.

Here are just some of the allegations that the court considered in upholding summary judgment:

Miller was a correctional officer at a state prison. It was widely known at the facility where she worked that the chief deputy warden was having sexual affairs with three different women: his secretary (Paramour 1), the associate warden (Paramour 2) and a third employee (Paramour 3).

At some point the chief deputy warden was promoted to warden of another facility, and Miller—unfortunately for her—later was transferred to the same facility.

At the new facility, Miller was on a committee to determine whether to promote Paramour 1 to a correctional counselor position at the new facility. When Paramour 1 was not selected, Miller and others were told that the warden had said to “make it happen.” Paramour 1 ultimately got the promotion and bragged about her power over the warden.

Paramour 2 also applied for and was given a transfer to the new facility, where she enjoyed unusual privileges, including reporting directly to the warden as opposed to her immediate supervisor.

Paramour 3 also was transferred to the new facility. She bragged to Miller about her affair with the warden and told Miller that she intended to use her power over him to extract benefits.

In short, over a relatively short period, all three women with whom the warden was having affairs were transferred to the new facility, where it was widely known that all three continued to have affairs with him.

Miller competed with Paramour 3 for a promotion. Paramour 3 got the promotion, despite Miller’s higher rank, superior qualifications and greater experience. Eventually, Paramour 3 was promoted again, with Miller becoming her direct report.

The warden and Paramour 1 were seen fondling each other at work-related social gatherings.

The three paramours publicly squabbled over the warden, sometimes making emotional scenes witnessed by other employees, including the plaintiffs.

Miller complained about the warden’s affairs. After one of her complaints, Paramour 3 physically assaulted her and falsely imprisoned her. No corrective action was taken in response.

Had enough?

Rude Awakening

Assuming all of these and other allegations to be true, the court had to determine whether they were sufficient to establish a hostile work environment, even though neither plaintiff was sexually propositioned.

On the basis of the EEOC’s guidelines on sexual favoritism, the court held that the plaintiffs had established a prima facie case of sexual harassment that should go to a jury.

Here’s how the court got there.

The EEOC guidelines begin with the general rule that isolated sexual favoritism does not violate Title VII. The theory is that the favoritism is not based on “sex” per se but rather on the relationship between the two individuals. More precisely, where a male manager favors his female paramour, other women and men alike are disadvantaged, so the disadvantage is not “on the basis of … sex.” The same analysis logically should apply to a female manager favoring a male subordinate and to same-sex favoritism.

The EEOC’s analysis has been applied in numerous cases holding that an isolated instance of paramour preference is not unlawful. In DeCintio v. Westchester County Medical Center, 807 F.2d 304 (1986), for example, the 2nd U.S. Circuit Court of Appeals found “no justification for defining ‘sex,’ for Title VII purposes, so broadly as to include an ongoing, voluntary romantic engagement.”

More recently, in Wilson v. Delta State University, C.A. No. 04-60759 (2005), the 5th U.S. Circuit Court of Appeals held that an employer’s discrimination in favor of a paramour “is not sex-based favoritism, as the favoritism, while unfair, disadvantages both sexes alike for reasons other than gender.”

The EEOC guidelines, however, recognize two distinct exceptions to the general rule that sexual favoritism is not unlawful.

The first exception is a situation where the sexual relationship is coerced or unwelcome. In such circumstances, others who are qualified but disadvantaged by the sexual favoritism may bring a viable harassment claim. For example, if a supervisor awards a benefit to a subordinate because of coerced sexual relations with her, other qualified employees may have viable claims.

The second exception is a situation where sexual favoritism is so widespread that the implied message is that women (or men) are “sexual playthings.” Conveying that message can create a hostile work environment for women and men alike. This is true even if the complainants themselves have not been sexually propositioned.

Think of it this way: Consensual sexual relationships are no different from any other kind of environmental harassment. For example, sexual bantering can create a hostile work environment for those who overhear it, even if the bantering is not directed to or about them.

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 where there is widespread sexual favoritism, it may communicate a message 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.”

In Miller, the sexual relationships were uncoerced, so the court focused on the issue of widespread sexual favoritism.

If a jury believed the plaintiffs’ allegations to be true, they were sufficient to create a hostile work environment, the court found. In so holding, the court emphasized, among other facts, that an internal investigation revealed that women generally believed that the key to advancement was through sexual conduct.

This was not an isolated case of paramour preference, the court observed. Rather, the top dog was having affairs with three different women.

Miller and Beyond

On the one hand, it’s important not to overstate the significance of Miller. After all, the EEOC guidelines it cites are not new, and the decision itself is binding only in California.

On the other hand, the decision is one of the first cases in which a court has adopted the EEOC’s theory on widespread sexual favoritism, and it has garnered significant media attention. That alone is likely to encourage plaintiffs’ lawyers to argue the theory’s application in other circumstances—for example, where multiple supervisors have individual liaisons.

However, even if courts reject hostile work environment claims based on widespread sexual favoritism of willing partners, the risks of supervisor-subordinate dating are enormous. As previously noted, a supervisor who dates or attempts to date a subordinate walks a legal minefield regardless of whether the subordinate says “yes” or “no.”

Seen from this perspective, Miller does not provide “a” reason but rather “another” reason for employers to take a second look at their policies and practices relative to workplace dating between supervisors and subordinates.

Ban, but Beware

A cautious employer might prohibit supervisors from dating or attempting to date those over whom they have supervisory authority. Employers that go this route not only should outlaw direct-report romances but also should consider banning liaisons with anyone over whom the supervisor has institutional authority. (For HR professionals, that probably would mean every employee in the company—or at least in the unit or division they serve.)

An outright ban should apply without regard to marital status. Employers that use such a policy to punish adulterers but allow unmarried persons to date subordinates may violate state laws that prohibit discrimination on the basis of marital status.

If you adopt a policy that prohibits supervisor-subordinate dating, be prepared to enforce it consistently. If the CEO starts dating a secretary, are you going to recommend discharge? Or will you create a CEO exception with its accompanying risks? Inconsistent enforcement may give rise to disparate-treatment claims on the basis of sex, race or other prohibited bases, or, at a minimum, may make the employer look bad in front of a jury.

In other words, an absolute prohibition of supervisor-subordinate dating may help solve one problem but can create others if it is not scrupulously enforced.

And how practical is that?

A prohibition against supervisor-subordinate dating may not end the dating; instead, it may encourage secret dating that does not produce obvious evidence that the relationship is consensual. Forcing such relationships underground might minimize an employer’s exposure to Miller-type claims, but what happens in the much more common situation where an employee alleges—after a relationship has ended—that it was unwelcome?

An employee’s chit-chat with co-workers about a romance with a supervisor does not immunize an employer from claims that the relationship was unwelcome, but it may provide evidence strong enough to persuade a jury: “If the relationship was unwelcome, why did you show your colleagues pictures from the trip you took together?”

This is not to argue against prohibiting supervisor-subordinate dating. It is to suggest only that it may be difficult to ensure that a paper policy is, in fact, the workplace reality, and that there are significant risks if the policy and practice are not in synch.

Requiring Reporting

An alternative to an absolute ban on supervisor-subordinate dating is a rule that requires the supervisor to report any such relationship to HR. To have teeth, such a policy must include sanctions for a supervisor’s failure to report and must address what happens after a report is made.

Ideally, a report should trigger a change in the reporting relationship. If that is not possible, another member of management should oversee any employment decision the supervisor makes with regard to the paramour.

When a reporting change is possible, the question becomes whose position should be changed. To the extent men hold a disproportionate number of supervisory positions (or are disproportionately more likely to date subordinates), routinely transferring the subordinate may have a disparate impact on women.

To avoid that problem, some may be tempted to adopt a policy requiring the supervisor rather than the subordinate to move. Although this minimizes the legal concern about gender bias, it may not be practical or desirable in a given situation. A better approach is to avoid a rigid rule on this issue and look at each situation on a case-by-case basis, balancing legal and business considerations.

HR should provide guidelines for future conduct to a supervisor who reports a relationship with a subordinate. Some examples of such guidelines are:

• No public displays of affection.
• No discussions of the relationship with other subordinates.
• No pressure on the subordinate to stay in the relationship.
• No adverse action against the subordinate if the relationship ends.

HR also should meet with the subordinate in a reported relationship to confirm from the employee’s perspective that the liaison is indeed consensual and welcome. While this may not stop an employee from coming forward later with a quid pro quo sexual harassment claim, it is strong defensive evidence.

Provide the subordinate with a mirror image of the guidelines given to the supervisor:

• No public displays of affection.
• No discussions of your relationship with peers.
• You have the right to get out of the relationship at any time without adverse employment consequences.
• If you feel pressure to stay in the relationship, report it immediately.
• If you get out and you feel there is retaliation of any kind, report that too.

Discourage Dating

An employer that neither prohibits nor requires reporting of supervisor-subordinate dating should, at a minimum, strongly discourage the practice. To the extent supervisors hear and understand the risks to them and to the company, they are less likely to go down that road.

Of course, if you receive complaints or otherwise become aware of sexual favoritism, inappropriate public displays of affection or the like, take immediate corrective action—even if the behavior is isolated and not widespread. While it may not be unlawful—yet—it is undeniably offensive and costly in terms of employee morale, loyalty and productivity.

What Approach?

As with most things, no one size fits all. You will need to assess your organization’s culture to see which of these approaches will work best in your environment.

But here’s the irony: The greater the institutional obstacles to banning supervisor-subordinate dating, the more likely a prohibition is desirable from a legal standpoint. The reverse is true too: Where a prohibition would meet with little or no resistance, perhaps you don’t need it at all.

Compare it with this: If there is little mid-day drinking in your organization, employees will not resist a no-alcohol-at-lunch rule, which means it may not be necessary in the first place. But if Jack Daniel’s and Jim Beam are regular lunch buddies, staffers probably will balk at a dry-lunch rule, making it all the more legally necessary.

In making policy on supervisor-subordinate relationships, HR professionals can neither embrace nor ignore the fact that romance is rampant. If HR accepts that as a given and either makes no policy or develops policies and practices that allow relationships to thrive, litigation is a likely byproduct. At a minimum, it’s bad business.

If HR ignores the lusty landscape and promulgates strict policies that everyone knows are violated, it may lose credibility—a risk that’s even greater if senior management officials are obvious offenders.

There’s no easy answer. In these circumstances, consider an incremental approach. Start with discouraging relationships and at some point begin requiring supervisors to report them. After a reporting process has been in place for a while, assess whether a full-fledged prohibition is desirable or necessary.

In the meantime, pray that the lovebirds marry. It is hard to claim that love was “unwelcome” after you say “I do.” (For additional protection, invite co-workers to the wedding party.)

Author’s Note: This article should not be construed as legal advice or as pertaining to specific factual situations.

Jonathan A. Segal, Esq., a contributing editor of HR Magazine, is a partner in Philadelphia and the vice chair of the Employment Services Group of Wolf, Block, Schorr and Solis-Cohen LLP. His practice concentrates on counseling clients, developing policies and strategic plans, and training managers to avoid litigation and unionization.