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Ordinarily, a consensual affair carried on outside the workplace, even between a supervisor and a subordinate, won’t mean liability for the employer if the supervisor never threatened or punished the subordinate at work. But once the affair is over, and management finds out about the relationship, it’s critical to make sure the subordinate isn’t unfairly punished.

Recent case: Roberta Silver, who worked as a teachers aide, began a consensual affair with the principal at her school while both were married to others. They never carried on at work; instead they spent time together during their free time.

When Silver ended the relationship, the principal took it hard for a few days. He left phone messages begging her to reconsider. At one point, he followed her while she was driving around town with her mother. But just as suddenly as the messages started, they stopped. The principal never threatened her job or took any negative action against her professionally.

But the school rumor mill feasted on news of the affair and the breakup. Silver sought a restraining order against her former lover. That’s when the school district told Silver she was restricted to her classroom, the gym and the cafeteria.

Silver sued, alleging that the restrictions amounted to a change in the terms and conditions of her employment related to the end of the affair. That is, she saw the restrictions as punishment.

The U.S. District Court of Colorado decided there was enough evidence that retaliation may have occurred to order a trial. (Silver v. Primero reorganized School District, No. 06-CV-02088, DC CO, 2008)

Final note: Allowing relationships between subordinate/supervisor is fraught with danger. A better approach is to ban them altogether. Because you will never know what actually goes on between the parties (i.e., who promises or threatens what), such relationships can easily spawn sexual harassment and retaliation lawsuits.

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