Harassment: Not What It Used to Be
Their eyes met across the copy machine and a smile passed between them. One thing led to another – coffee, then dinner, and, soon, a sexual relationship. It’s a scenario that’s been enacted countless times in offices across the U.S. And it’s a situation that gives headaches to HR officers, especially when one of the two is a supervisor.
But, for a real HR nightmare, consider these possibilities: What happens if Mr. Supervisor has simultaneous affairs with multiple (say, three) employees? And what if he intercedes in their careers, promoting them over better-qualified, more experienced co-workers? To carry it a bit further, what if the supervisor’s lovers have spats with each other in the workplace because of the affairs? What if they brag about the control they have over their supervisor as a result of the liaisons? What if they humiliate, or even physically attack, other employees and the supervisor does nothing? What if other employees know of the affairs and come to believe the only way for women to get ahead is by having a sexual relationship with the boss? And what if all this goes on for years?
Couldn’t happen, you say? Yet those are the basic facts in a case that recently went before the Supreme Court of California. And, presented with those facts, a unanimous court on July 18 expanded the state’s definition of the sexual harassment necessary to create a hostile working environment.
As California Chief Justice Ronald M. George wrote in Miller v. Department of Corrections: “[W]e conclude that, although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread, it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management” (Miller, 2005, pp. 1-2).
The decision has caused a flurry of comment by legal experts. Some, like Lynne Hermle, say the decision is “unusual” and will have little impact. Hermle, a management attorney who heads up the employment group of the Silicon Valley law office of Orrick Herrington and Sutcliffe, says that’s because the facts of this case were extreme and the liaisons were widespread (Irvin, 2005).
Others disagree, calling Miller “groundbreaking” and noting that it “significantly expands the law on sexual harassment in California” (Jackson Lewis, 2005b). Other commentators go even further. “Some cases are over-sensationalized and over-reported,” said David D. Kadue, an attorney with the Los Angeles firm of Seyfarth Shaw. “But this case is under-sensationalized and under-reported. It creates a new dimension of risk for California employers. [It’s not only California employers who need to take note, because] historically, California has always been a bellwether state whose decisions influence other state supreme courts” (Irvin, 2005, p. 265).
In fact, at least two other courts – the Massachusetts Court of Appeals and the New Jersey Supreme Court – accept what is being called the “untargeted victim theory,” holding that harassment does not have to be directed at a particular worker in order for that employee to be a victim of sexual harassment. The Massachusetts court, in the 2004 case of Ritchie v. Department of State Police, indicated that the theory could be applied in less-widespread circumstances, as in a small office in which a single affair creates “circumstances of favoritism and the office paramour’s conduct rise[s] to the level of creating a sexually hostile environment” (Irvin, 2005, p. 266).
Employers even need to be wary of the untargeted victim theory at the federal level. Even though federal courts have tended to reject the concept, the Equal Employment Opportunity Commission (EEOC) appears to agree with the California court (Irvin, 2005). In fact, the court used an EEOC rule from a 1990 policy statement in arriving at its conclusion ( Ogletree Deakins, 2005b).
“Prudent employers should heed this as a warning,’’ caution attorneys Jeff Tanenbaum and Sheila Kiernan (2005) of the California law firm Nixon Peabody LLC. “Miller makes clear that employers need to take appropriate steps to ensure a work environment free from hostility for all employees when employees and/or supervisors are engaged in consensual sexual relationships”.
One thing employers can do is to review their fraternization and harassment policies and provide training for all employees, not just supervisors (Tanenbaum & Kiernan, 2005; Ogletree Deakins, 2005a). Employers who know of consensual relations between employees may, in some cases, want those employees to sign a “love contract” that sets out the behavior expected in the workplace by the parties who are involved.
Documents used in the preparation of this TrendWatcher include:
Brand, Ron. “Favoring a Paramour May Be Sexual Harassment.” Labor Letter [www.laborlawyers.com]. October 2005.
Irvin, Helen. “Sexual Harassment Without the Harassment? State Court Finds Liability in Workplace Affair.” Bulletin to Management, August 23, 2005, pp. 265-266.
Jackson Lewis. “California Ruling on Workplace Romance Sends Employers Scrambling for Cover” [www.jacksonlewis.com]. August 8, 2005a.
Jackson Lewis. “Workplace Romance May Create Hostile Work Environment for Other Employees” [www.jacksonlewis.com]. July 25, 2005b.
Miller et al. v. Department of Corrections et al., Supreme Court of California, S114097 [www.courtinfo.ca.gov/opinions/documents]. July 18, 2005.
Ogletree Deakins. “Workplace Romance Presents Liability Risk for California Employers.” California Alert [www.ogletreedeakins.com]. August/September 2005a.
Ogletree Deakins. “Workplace Romances Can Form Basis of Harassment Claims Under CA Law.” E-Alert [www.ogletreedeakins.com]. July 20, 2005b.
Tanenbaum, Jeff and Sheila Kiernan. “Dangerous Liaisons: Preference for Paramours Can Create Hostile Environment for Other Employees” [www.nixonpeabody.com]. July 27, 2005.
But, for a real HR nightmare, consider these possibilities: What happens if Mr. Supervisor has simultaneous affairs with multiple (say, three) employees? And what if he intercedes in their careers, promoting them over better-qualified, more experienced co-workers? To carry it a bit further, what if the supervisor’s lovers have spats with each other in the workplace because of the affairs? What if they brag about the control they have over their supervisor as a result of the liaisons? What if they humiliate, or even physically attack, other employees and the supervisor does nothing? What if other employees know of the affairs and come to believe the only way for women to get ahead is by having a sexual relationship with the boss? And what if all this goes on for years?
Couldn’t happen, you say? Yet those are the basic facts in a case that recently went before the Supreme Court of California. And, presented with those facts, a unanimous court on July 18 expanded the state’s definition of the sexual harassment necessary to create a hostile working environment.
As California Chief Justice Ronald M. George wrote in Miller v. Department of Corrections: “[W]e conclude that, although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread, it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management” (Miller, 2005, pp. 1-2).
The decision has caused a flurry of comment by legal experts. Some, like Lynne Hermle, say the decision is “unusual” and will have little impact. Hermle, a management attorney who heads up the employment group of the Silicon Valley law office of Orrick Herrington and Sutcliffe, says that’s because the facts of this case were extreme and the liaisons were widespread (Irvin, 2005).
Others disagree, calling Miller “groundbreaking” and noting that it “significantly expands the law on sexual harassment in California” (Jackson Lewis, 2005b). Other commentators go even further. “Some cases are over-sensationalized and over-reported,” said David D. Kadue, an attorney with the Los Angeles firm of Seyfarth Shaw. “But this case is under-sensationalized and under-reported. It creates a new dimension of risk for California employers. [It’s not only California employers who need to take note, because] historically, California has always been a bellwether state whose decisions influence other state supreme courts” (Irvin, 2005, p. 265).
In fact, at least two other courts – the Massachusetts Court of Appeals and the New Jersey Supreme Court – accept what is being called the “untargeted victim theory,” holding that harassment does not have to be directed at a particular worker in order for that employee to be a victim of sexual harassment. The Massachusetts court, in the 2004 case of Ritchie v. Department of State Police, indicated that the theory could be applied in less-widespread circumstances, as in a small office in which a single affair creates “circumstances of favoritism and the office paramour’s conduct rise[s] to the level of creating a sexually hostile environment” (Irvin, 2005, p. 266).
Employers even need to be wary of the untargeted victim theory at the federal level. Even though federal courts have tended to reject the concept, the Equal Employment Opportunity Commission (EEOC) appears to agree with the California court (Irvin, 2005). In fact, the court used an EEOC rule from a 1990 policy statement in arriving at its conclusion ( Ogletree Deakins, 2005b).
“Prudent employers should heed this as a warning,’’ caution attorneys Jeff Tanenbaum and Sheila Kiernan (2005) of the California law firm Nixon Peabody LLC. “Miller makes clear that employers need to take appropriate steps to ensure a work environment free from hostility for all employees when employees and/or supervisors are engaged in consensual sexual relationships”.
One thing employers can do is to review their fraternization and harassment policies and provide training for all employees, not just supervisors (Tanenbaum & Kiernan, 2005; Ogletree Deakins, 2005a). Employers who know of consensual relations between employees may, in some cases, want those employees to sign a “love contract” that sets out the behavior expected in the workplace by the parties who are involved.
Documents used in the preparation of this TrendWatcher include:
Brand, Ron. “Favoring a Paramour May Be Sexual Harassment.” Labor Letter [www.laborlawyers.com]. October 2005.
Irvin, Helen. “Sexual Harassment Without the Harassment? State Court Finds Liability in Workplace Affair.” Bulletin to Management, August 23, 2005, pp. 265-266.
Jackson Lewis. “California Ruling on Workplace Romance Sends Employers Scrambling for Cover” [www.jacksonlewis.com]. August 8, 2005a.
Jackson Lewis. “Workplace Romance May Create Hostile Work Environment for Other Employees” [www.jacksonlewis.com]. July 25, 2005b.
Miller et al. v. Department of Corrections et al., Supreme Court of California, S114097 [www.courtinfo.ca.gov/opinions/documents]. July 18, 2005.
Ogletree Deakins. “Workplace Romance Presents Liability Risk for California Employers.” California Alert [www.ogletreedeakins.com]. August/September 2005a.
Ogletree Deakins. “Workplace Romances Can Form Basis of Harassment Claims Under CA Law.” E-Alert [www.ogletreedeakins.com]. July 20, 2005b.
Tanenbaum, Jeff and Sheila Kiernan. “Dangerous Liaisons: Preference for Paramours Can Create Hostile Environment for Other Employees” [www.nixonpeabody.com]. July 27, 2005.