Sexual Harassment: Favoritism Based On An Office Romance Can Be Illegal

Published October 5, 2005

Favoritism has a long history of not being deemed an illegal workplace act. But under certain circumstances, favoritism that results from an office romance may amount to sexual discrimination or harassment. And since over half of the employees in a national workforce survey have admitted to having dated co-workers, you definitely want to pay attention to what the EEOC and the California supreme court had to say about favoritism and office romances.

Said the EEOC: "If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed their favors."

Quick details: A manager in California was having obvious affairs with three co-workers.  Both he and his romantic partners made things miserable for several other subordinates.  The negative treatment ranged from constant verbal abuse to loss of promotions, to actual demotions to reduced privileges.  Two of the targets sued under California's Fair Employment and Housing Act.   Here's what the California supreme court said.

• A worker can suffer harassment even if his/her boss never asked for sexual favors or made inappropriate advances.  And an employee does not have to be the direct target to be a harassment victim.
• Based on the EEOC policy statement, an atmosphere that is sufficiently demeaning to women may be actionable by both men and women.
• Employees are not required to elaborate to their employer on the legal theory underlying the complaints they are making, nor do they have to recite the specific words "sexual discrimination" or "sexual harassment," to be protected.  (Miller v. DOC, CA Sup. Ct., No. S114097, 2005)

Ridding Your Workplace Of Romantic Favoritism

• Make sure sexual favoritism claims receive the same amount of attention and investigation as any other "harassment" claims even if they aren't labeled as harassment.  The words "sexual harassment" do not have to be uttered for you to be put on notice that an investigation is needed.
• Besides enforcing non-fraternization and anti-nepotism policies, you should set in place a mechanism to ensure that even consensual relationships don't create a hostile environment for others.
• Don't overstep privacy boundaries.  Some states, like California and New York, prohibit employers from taking adverse action against employees engaged in lawful off-duty conduct.  That could include a consensual sexual relationship.
• Focus on workplace facts.  It's not the affair or romantic relationship that should be the basis for your action.  It's the effect it has on the workplace.  Sexual favoritism that lowers morale, decreases productivity, etc., is fair game for your discipline.
• Keep your ear to the ground for "indirect" harassment.  Squabbling between co-workers, bragging about receiving plum assignments, or in-your-face confrontations between equals may indicate a relationship that needs investigating.

Related Topic(s): Discrimination/Sexual Harassment