Workplace Romances Can Be Dangerous to Employers

" Companies may want to implement stronger policies against intra-workplace fraternization>
In this case, two female employees alleged that their supervisor was simultaneously involved in consensual sexual relationships with three of his five female subordinates. The women argued that the three women received special treatment over the two remaining women who were not sexually involved with the male supervisor, such as promotions, scheduling and training favoritism. When one of the two women complained about the favoritism, she allegedly suffered retaliation for her complaint. The two women filed suit against the employer, claiming that the apparent favoritism exhibited toward the other three women upon them constituted a sexually hostile work environment. The lower courts disagreed and found in favor of the employer.

The California Supreme Court, however, found the employer liable, holding that suggestions of favoritism based upon sex could become sufficiently pervasive to create a sexually hostile work environment for otherwise unaffected co-workers. The Court relied on the Equal Employment Opportunity Commission's policy statement and guidelines in concluding that sexual favoritism could create a hostile work environment by implying that supervisors view their female subordinates in a sexual – rather than professional – manner, and that engaging in consensual sexual behavior is the only way for women to advance in their careers.

This case is particularly groundbreaking because it rejects other courts' decisions that had concluded that sexual favoritism is not actionable under the employment discrimination laws because such behavior negatively impacts both men and women equally and is not directed toward any member of a discrete class. In contrast, the California Supreme Court held the widespread sexual favoritism might be actionable under state law because of the effect it has on all members of the workplace.

As this significant decision for business owners will most certainly encourage new legal actions brought by employees for sexual harassment in the workplace, employers are urged to review their non-fraternization and sexual harassment policies and training materials. Employers should review and discuss this decision with their employees in the mandatory anti-harassment training that California employers are required to complete by the end of the year. In addition, companies may want to implement stronger policies against intra-workplace fraternization and, in the event of a workplace romance, companies may consider documenting the consensual nature of the relationship.

  • Krupin O'Brien LLC is a nationally recognized law firm specializing in employment and labor law and exclusively representing employers in the areas of labor relations, employment law, business immigration and related litigation. The firm has a particular expertise in representing restaurants and the hospitality industry, and represents companies and ownership groups of all sizes, both local and nationally. For further information contact Ana Salper, an attorney with Krupin O'Brien LLC, where she represents clients on all forms of litigation, and counsels clients on diverse employment and labor matters. Ms. Salper oversees the firm's New York office and is a member of the New York State Bar. Contact her at: 212-745-1387 or ana@krupinobrien.com.
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