Wendi S. Lazar and Delyanne D. Barros
Wendi S. Lazar and Delyanne D. Barros ()

Jerry Seinfeld once quipped: “[d]ating is pressure and tension. What is a date, really, but a job interview that lasts all night?” This could be true when considering workplace relationships. While, such an “interview” may lead to a meaningful relationship—even a life partner—it could also go awry and lead to liability for the employer and employee if there is harassment, discrimination, or “sexual favoritism.” Whether or not work romances or sexual favoritism are legal will depend on the hierarchy of the relationships, facts surrounding the behaviors, the company’s policy (if one exists), and the state in which the relationship takes place.

With all the inherent risks, workplace romances are in fact very popular and pose problems for employees and employers alike. In a 2013 survey by Vault.com, almost 60 percent of those surveyed admitted to having an office romance and 64 percent said that they would do it again.1 It is not surprising that the office has become a major dating scene when one considers that the average employee spends the majority of his day working, once sleeping and eating are taken into account.2

As commonplace as these romances have become, there are still fundamental issues that arise which can leave employees, especially women, vulnerable to discrimination and retaliation. The most fundamental issues occur when a supervisor and a subordinate become romantically involved.3 This issue is not lost on the public, as 34 percent of those surveyed by Vault.com found that an office romance is unacceptable when the couple involved is on “different levels.”4 Clearly the power dynamic between these two individuals puts into question whether the relationship is truly welcomed and consensual.

Sexual Harassment

Federal and state laws have made it clear that sexual harassment is a form of gender discrimination and therefore illegal under Title VII of the Civil Rights Act of 1964 as well as local and state laws.5 Work relationships can be a source of quid pro quo sexual harassment in situations where submission to or rejection of sexual favors is used as the basis for employment decisions or is made a condition of employment. Work relationships can also be a source of a hostile work environment which is present where inappropriate behavior is severe or pervasive.6 The key inquiry is whether the harassment resulted in a tangible employment action resulting in significant change in employment status.7

For actionable harassment to exist, a reasonable person must be able to find the work environment hostile or abusive, and the victim must perceive it to be so.8 Courts have found that the following conduct may be sufficient to show a hostile work environment: repeatedly calling an employee a “bitch” and giving her unequal work assignments9; making sexually suggestive comments about an employee’s body, her clothing and the way she smelled, and leering at her10; and watching pornography in the workplace and in the presence of other employees.11

Thanks to technology, today’s workplace expands beyond that of the physical office. Employees are regularly provided with access to the Internet via their work computers, personal handhelds, and iPads. Textual harassment refers to sending someone unsolicited text messages, via a phone or social media, that may be harassing in nature. In order to protect employees from such occurrences, employers should institute, update and enforce clear policies on the use of technology and communication between co-workers.

Whether the harassment is via technology or in person, what both types of harassment have in common is that the conduct is essentially not welcomed. But what if the relationship appears to be “consensual”? For example, summary judgment was granted for the employer where a plaintiff engaged in a long-term live-in relationship with her supervisor which continued even after she had left her job.12 The plaintiff, who never complained, allowed her supervisor to pay half her rent, accepted his gifts, met his parents, referred to him as her boyfriend, and continued their relationship for several months after she quit her job at the store.13

What if an employee is denied a promotion because her boss decided to promote his lover instead? Do employees have any protection in such scenarios and more importantly, can the employer be held accountable?

Sexual Favoritism

Thirty-five percent of those surveyed by Vault.com “felt that a co-worker gained a professional advantage because of a romantic relationship with a coworker/superior.”14 Although such favoritism is clearly unfair to other employees who are overlooked for jobs or promotions, proving that such favoritism violates Title VII and other discrimination laws has proven challenging for plaintiffs. The Equal Employment Opportunity Commission, under the conservative direction of Clarence Thomas, changed its position on sexual favoritism in 1990, finding that “isolated instances of preferential treatment based upon consensual romantic relationships” is not a violation of Title VII since both men and women “are disadvantaged for reasons other than their genders.”15 However, it is still a violation of Title VII where favoritism is based upon coerced sexual conduct or where there is widespread favoritism based on granting sexual favors which equates to a hostile work environment.16

In 2005, this theory of sexual favoritism perpetuating a hostile work environment was finally recognized by the California Supreme Court in Miller v. Department of Corrections under the California Fair Employment and Housing Act (FEHA).17 The 6-0 ruling reinstated a suit by two former state Corrections Department employees who accused a prison warden of having affairs with at least three subordinates, giving them favored treatment, and retaliating against the two female plaintiffs when they complained.18 The prison warden pressured the personnel committee to grant his lovers transfers and promotions for which they were not eligible or qualified.

The Supreme Court held that such widespread sexual favoritism can support a claim for sexual harassment based on a hostile work environment provided that the favoritism is “severe or pervasive enough to alter [the plaintiffs'] working conditions and create a hostile working environment.”19

As a result, where favoritism in return for sexual favors is widespread in a workplace, an employee who does not welcome such conduct may bring a hostile work environment claim for sexual harassment regardless of whether or not the conduct is directed at her. Employers should no longer turn a blind eye to “consensual” relationships where the power balances are skewed and may lead to other employees being overlooked and mistreated as a result of favoritism.

Love Contracts

In the last few years, companies have responded to this reality by instituting what has been popularly dubbed as “love contracts.” These contracts seek to establish that two employees are in a consensual dating relationship in order to defend a potential sexual harassment claim in the future, and have the parties agree that they will not allow the relationship to interfere with their work productivity. One sample love contract provided that by signing it, the employees agree to “notify the company that [they] wish to enter into a voluntary and mutual consensual social relationship” and one which they “are both free to end…at any time. Should the relationship end, [they] agree that [they] will not allow the breakup to negatively impact the performance of [their] duties.”20 Often these contracts may limit the grievance process to arbitration, potentially limiting an employee’s right to file a lawsuit in court.21

Employees should have legal counsel before signing any contract with an employer that affects workplace rights (which employers are unlikely to encourage), but otherwise may result in a claim for duress. In addition, employees are providing the company access to personal and likely inappropriate data about themselves which can stifle positive employee morale as well as create toxic work environments where retaliation and hostility may prevail. Also, love contracts can stigmatize consensual and healthy workplace relationships which have been shown to increase positive employee attitudes and work productivity. Although employers may point to productivity and avoiding distraction in the workplace as a reason for instituting love contracts, the obvious reason for them is an erroneously held belief that it will limit an organization’s liability in the event that the romantic relationship sours.22

While love contracts often make reference to the company’s sexual harassment policy and “that entering into the social relationship has not been made a condition or term of employment”23 it is unlikely that such a provision would be considered a waiver of a quid pro quo sexual harassment claim. In the end, employers need to understand that love contracts are not a replacement for a thorough and effective sexual harassment policy.

Love contracts often give the employer entree into the most intimate aspects of an employee’s private life. While an employer may already be well aware of an employee’s blossoming work romance through the monitoring and surveillance of its communications devices, this will likely result in heightened scrutiny of the employees and an excuse for the employer to watch ALL of the employees’ activities and performance, including electronic communications. However, an employer does not have unlimited access to its employees’ electronic communications and may therefore be held liable for an unauthorized or coerced access under the Electronic Communications Privacy Act (ECPA)24 and two of its subsections: the Stored Communications Act (SCA),25 and the Wiretap Act.26 Employers may pay heavily for assuming that their technology policies allow them to freely peruse their employees’ private emails or restricted websites, such as social networking sites and password-protected chat groups.27

In any event, employers should not view all voluntary workplace romances as potential liability. In fact, office romances can improve the workplace so long as they are voluntary and do not send a message to employees that sexual favors are a way to obtain benefits and preferential treatment in the workplace. Employees whose relationships result in marriage are generally happier, thus more productive in the long run.28

Conclusion

Undeniably, consensual workplace relationships are difficult for both the employer and employee but they are here to stay. Instead of employers injecting themselves into the private lives of its employees and creating dangerous and likely unenforceable agreements, it might be more productive and create less litigation if employers would focus on instituting and enforcing their anti-harassment, retaliation, and discrimination policies and educating employees on appropriate behavior in the workplace.

Wendi S. Lazar is partner and co-chair of the executives and professionals practice group at Outten & Golden. Delyanne D. Barros is an associate at the firm and co-chair of the firm’s sex discrimination and sexual harassment practice group.

Endnotes:

1. Vault’s 2013 Office Romance Survey, VAULT.COM, available at http://www.vault.com/blog/workplace-issues/the-results-are-in-2013-office-romance-survey/ (last visited Feb. 10, 2014).

2. AMERICAN TIME USE SURVEY, DEP’T OF LABOR (2011), (those employed spend an average of 7.6 hours a day working), available at http://www.bls.gov/news.release/atus.nr0.htm (last visited on Oct. 28, 2012).

3. Id. (26 percent of those surveyed admitted to dating a subordinate and 18 percent had dated a supervisor).

4. Vault, see note 1.

5. 42 U.S.C. §2000e et seq.; New York State Human Rights Law, Executive Law §§296 et seq.; New York City Human Rights Law, NYC Adm. Code §§8-107 et seq.

6. Id.

7. Harris v. Forklift Sys., 510 U.S. 17, 21-22 (1993).

8. Id.

9. Pucino v. Verizon Wireless Comm., 618 F.3d 112 (2d Cir. 2010).

10. Kaytor v. Electric Boat, 609 F.3d 537 (2010).

11. Patane v. Clark, 508 F.3d 106 (2d Cir. 2007).

12. Mosher v. Dollar Tree Stores, 240 F.3d 662, 668 (7th Cir. 2001).

13. Id.

14. Vault, see note 1.

15. EEOC POLICY GUIDANCE ON EMPLOYER LIABILITY UNDER TITLE VII FOR SEXUAL FAVORITISM (1990), available at http://www.eeoc.gov/policy/docs/sexualfavor.html (last visited Oct. 28, 2012).

16. Id.; Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’r, 716 F.3d 10 (2d Cir. 2013).

17. 36 Cal. 4th 446 (Cal. 2005).

18. Id.

19. Id. at 466.

20. “Caught in the Pact; Couples involved in Office Dalliances Required to Sign ‘Love Contract,’” SFGate.com, Dec. 2, 2001, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2001/12/02/AW129618.DTL (last visited Oct. 28, 2012).

21. “The Scoop on Love Contracts,” ABOUT.COM, June 1, 2008, available at http://humanresources.about.com/b/2008/06/01/the-scoop-on-love-contract-policies.htm (last visited Aug. 2, 2010) (hereinafter Scoop on Love Contracts).

22. “Managing Workplace Romances Requires More Than a Love Contract,” PALABORANDEMPLOYMENTBLOG.COM, May 19, 2008, available at http://www.palaborandemploymentblog.com/2008/05/articles/discrimination-harassment/managing-workplace-romance-requires-more-than-a-love-contract/ (last visited Oct. 28, 2012) (“Love Contracts have limited utility absent a broader policy and training approach”).

23. Id.

24. 18 U.S.C. §2510, et seq.

25. 18 U.S.C. §2701, et seq.

26. 18 U.S.C. § 2510, et seq.

27. Pietrylo v. Hillstone Rest. Group, No. 06-5754 (FSH), 2009 WL 3128420 (D. N.J. Sept. 25, 2009) (employer violated the SCA by accessing employees’ password-protected and invite-only online forum without permission).

28. See, e.g., Cathy F. Bowen, Rama Radhakrishna and Robin Keysor, “Job Satisfaction and Commitment of 4-H Agents,” 32:1 J. EXTENSION (1994), available at http://www.joe.org/joe/1994june/rb2.html (last visited Oct. 28, 2012) (“Job satisfaction of agents was significantly related to…marital status.”); Andrea Kay, “Would you sign a ‘love contract’?” HONOLULU ADVERTISER, April 23, 2007 (on file with author) (“[C]o-workers who spend more time at work, have higher motivation, fewer sick days and less turnover”).