Some employers wrongly believe that when co-workers end what was a consensual sexual relationship, one employee can’t later claim sexual harassment for post-breakup conduct. The dubious assumption: Any subsequent unpleasant contact between the employees was probably based on jealousy or anger over the broken relationship rather than “on account of sex.” That’s not always true.
Recent case: Inventory control manager Lisa Sclafani had a tumultuous personal relationship with a co-worker. She said the romance ended sometime in 2001, though their interaction at work did not. Sclafani said that over the next five years, her former partner constantly harassed her, calling her names and making numerous derogatory sexual comments. She said she complained to many times about what she had to endure.
She sued, alleging sexual harassment and a hostile work environment.
In pretrial hearings, Sclafani’s employer urged the court to adopt a standard rule: If an employee engaged in a consensual relationship with a co-worker, any harassment following the end of the affair can’t be the basis for a lawsuit if the harassing co-worker acted out of personal animosity or jealousy.
The court refused to adopt such a rule. It said that doing so would give the harasser “carte blanche to harass” or torment the former paramour even though the same conduct would certainly be sexual harassment if directed at any other employee. Instead, the court said it would consider such cases based on the unique facts of each one.
But there was more to the case.
Sclafani’s lawsuit also alleged that she had been retaliated against when she complained about an alleged assault by her former partner.
She said she complained to management when the man allegedly grabbed her in the parking lot. He was suspended and ordered to undergo anger management training. Meanwhile, Sclafani said she was told “enough is enough” and that her broken relationship was now interfering with work. Shortly after, she was fired.
To make matters worse, Sclafani also testified that a supervisor didn’t take her concerns seriously. Instead, after the alleged assault, he told her “you must be pretty good in bed” for the former partner to “freak out like that.”
The court said a jury should decide whether she had been forced to work in a sexually hostile environment and whether she had been retaliated against for complaining. (Sclafani v. PC Richard & Son, et al., No. 07-CV-3767, ED NY, 2009)
Final notes: The lesson of this case is that you must never ignore a sexual harassment complaint—even if you know the employees involved were former lovers.
Investigate as you would any other case. Resist the temptation to place blame. Instead, separate the two and warn both that you expect cordial, normal workplace behavior from them. Then, if either one does not follow those directions, take disciplinary action.
The worst thing you can do is make light of the situation or make excuses for one partner’s poor behavior.
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