A workplace affair can wreak havoc if the couple breaks up—especially if one is a supervisor. There may be a sexual harassment claim lurking in the affair—perhaps even a quid pro quo one. Who knows what the supervisor had threatened to get the affair started?
But that’s not the only problem. Sometimes an office affair can create an uncomfortable situation for other employees. If things really get out of hand (say, if favoritism or unfair promotions have occurred), other employees caught in the affair’s undertow may sue for sexual harassment, too.
Recent case: Tracy Perron sued for sexual harassment and sex discrimination when her married supervisor had an ongoing affair with Perron’s co-worker. The two lovers frequently giggled in their offices, the woman started dressing very provocatively and packages addressed to her from Victoria’s Secret began appearing regularly. When he was able to change schedules, the supervisor arranged for the two of them to work “from home” on the same days.
But that wasn’t all. The supervisor chose his lover for a lucrative temporary assignment in New Orleans after Hurricane Katrina ravaged the city, netting her plenty of overtime—and time on the road with the supervisor.
Perron said she didn’t receive cash awards the supervisor arranged for his girlfriend. Perron also didn’t get a recommendation for another job from the supervisor, ostensibly because he wanted his paramour to get the job.
The court dismissed the pure sexual harassment portion of the lawsuit. It reasoned that—absent blatant sexual conduct in the office or offensive comments about the affair—Perron couldn’t claim the office was a cesspool of sexual harassment. Listening to giggles, enduring a co-worker’s sexually provocative attire and seeing packages from Victoria’s Secret weren’t enough.
On the other hand, the court did order a trial on sex discrimination. It concluded that being passed over for a plum assignment, bonuses and recommendations in favor of the boss’s lover can be sex discrimination under Title VII. (Perron v. Secretary, Department of Health and Human Services, No. 2:06-CV-02429, ED CA, 2007)
Final note: While you may not be able to prevent romance in the workplace, you can and should listen to complaints from co-workers who come forward. If HR finds out about a sexual relationship, especially if there is a supervisor and a subordinate involved, consider how to handle the matter. Remember, if the affair goes sour, the organization may be liable for sexual harassment.
It’s a good idea to contact experienced counsel as soon as you learn about an office affair. An attorney can guide you to a resolution that involves the least risk.
In addition, go over your California sexual harassment training obligations. Have you trained supervisors and managers as required? Is it time to refresh that training or take other action to show your organization is committed to a workplace free of sex discrimination and sexual harassment?
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