Sex at work: test your knowledge!

by Constangy, Brooks, Smith & Prophete, LLP
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How much do you really know about sexual relationships in the workplace? Take my quiz, and find out!

Bert gives Ernie all the cushy jobs because they’re having a consensual affair. Can Ernie’s co-workers sue for sex harassment or discrimination?
 
 
 
 
 
pollcode.com free polls

 The correct answer is “NO, because the relationship is consensual, so no ‘harassment’ is involved.” People are always surprised at this answer, but the courts generally take the position that favoritism based on a consensual sexual relationship is more like nepotism than like discrimination or harassment. Unfair, yes. Bad management, yes. But not illegal. And we have a very recent case involving a former Athletic Director at the University of Detroit-Mercy, and her two male assistant coaches, that backs me up. (Not quite as kinky as my summary makes it sound.)

(If you’re in the District of Columbia, the answer might be different, based on a case from the 1980's that none of the other federal courts seem to have followed. In other words, in D.C., you might have a claim for sexual harassment or discrimination if your boss shows favoritism to the co-worker with whom he or she is having a consensual relationship.)

Bert_and_ernie_t400

“Bert and I are just buddies! Really!”

Great job! Here is the next question:

Snidely Whiplash is sexually harassing Nell, and also giving her all the cushy jobs. Can Nell’s co-workers sue?
 
 
 
 
 
pollcode.com free polls

 The correct answer is “YES, because the co-workers might get better treatment if they would let Snidely harass them. In other words, they’re being treated worse because they aren’t being sexually harassed.” Kind of strange, isn’t it? If the differential treatment is a result of a consensual relationship, then it’s unfair but not illegal. But if the differential treatment is a result of a sexual harassment, then the co-workers who don’t “benefit” probably have valid legal claims against the supervisor and the employer.

Snidely Whiplash

“Curses! Foiled again!”

Ready for Number 3? Of course you are! This one doesn’t even involve cartoon characters.

After Jose tells co-worker Rosa that he doesn’t want to have sex with her, she bad-mouths him to the boss and gets him fired. Can he sue the company?
 
 
 
 
 
pollcode.com free polls

The correct answer to this one is “YES, but only if the boss knew or should have known about Rosa’s motivations.” This one is based on a decision that recently came down from the U.S. Court of Appeals for the First Circuit, which hears appeals from federal courts in Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island. The case is a real doozy, and the facts were pretty much as I gave them. “Jose” and “Rosa,” both members of management, got along fine, and even flirted with each other. Then Jose decided he didn’t want that kind of relationship, and he told Rosa. Rosa became very angry (allegedly), and reported all kinds of (alleged) misconduct, attendance, and performance problems to Jose’s bosses. The “Jose” in the case complained to his bosses about “Rosa’s” vindictiveness, and one boss allegedly told him to just go ahead and have sex with her so that she’d quit being mad at him and leave him alone. (Oh, and did I mention that “Rosa” was in Human Resources? It’s true!)

Hell hath no fury

Rosa is the one on the right.

Anyway, Jose’s boss decided to put Jose on a performance improvement plan, and Rosa appealed the decision to corporate headquarters in Ohio! (Hell hath no fury . . .) Headquarters sided with Rosa, and directed that Jose be fired. Jose sued, and the federal court in Puerto Rico threw out his case. But the appeals court said that the employer could be liable under these circumstances. If the employer takes action against the employee when it knows or should have known that the complaining co-worker is sabotaging the employee for rejecting sexual advances, then the employer will be liable. The case will now go to a jury if it doesn’t settle.

Here is the last one:

Same as the one before, except now Rosa is Jose’s boss. Can Jose sue the company?
 
 
 
 
 
pollcode.com free polls

 Wow! Everybody got that one right! Good job!

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Constangy, Brooks, Smith & Prophete, LLP | Attorney Advertising

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