Consent doesn’t mean it wasn’t sexual harassment

Employers sometimes mistakenly believe that consensual sexual activity between a subordinate and a supervisor isn’t sexual harassment. That’s simply not the case.

As long as the activity was unwelcome, it doesn’t matter if the employee being targeted agreed to the supervisor’s demands.

Fear or threats of losing one’s job can be enough to force an employee to “consent,” but agreeing to participate doesn’t rule out a later sexual harassment lawsuit.

Recent case: A church hired Augusto Medina to be the personal assistant to the pastor, known as Reverend Ike. Medina’s official duties included helping Reverend Ike with his personal care and generally acting as a valet.

Medina later claimed that Reverend Ike also made him engage in a sexual relationship. Medina testified that he hadn’t wanted to participate, but did so voluntarily after Reverend Ike threatened his job and made him redo work he had already completed.

Medina sued for sexual harassment. The church argued that it wasn’t liable because Medina had consented to the sexual activities.

The court disagreed. It said the Supreme Court long ago decoupled consent and sexual harassment when the harasser is a supervisor. Employees can still prove sexual harassment if they can show the conduct was unwelcome, even if they consented for fear of losing their jobs or after being threatened. (Medina v. United Christian Evangelistic Association, No. 08-22111, SD FL, 2009)

Final tip: To eliminate the consent issue, consider banning all personal relationships between supervisors and subordinates. Such relationships are rarely equal and may be bad for morale if the lover is favored. Plus, if the romance goes bad, it could turn into a sexual harassment lawsuit. While all workplace romances probably can’t be prevented, at least limit them to co-workers.