Guess Who You Should Never Invite to Dinner? What We Can Learn From Sexual Harassment Claims in the News

by Bradley Arant Boult Cummings LLP
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Sexual harassment—we have policies against it, we train people on how to prevent and report it, and yet still we have big news stories about it. In the last year, Fox News hit the headlines on this front multiple times–not only did the Chairman and CEO leave following a sexual harassment lawsuit, but now Bill O’Reilly is out in the wake of harassment allegations. Both men deny the allegations, and I have no opinion as to who is telling the truth. However, reading the various details that have come out compels me to opine about how people in power should behave at work.

A caveat: I am not here to comment on most of what is alleged against these two Fox News powerhouses. However, both cases included allegations that the person in power asked a subordinate employee to dinner, and it was perceived as a purely social invitation. Some might say what is the harm in asking a subordinate on a date? Dinner is only dinner, and we are both adults—he or she can say no. Therein could lie the problem and the point of this post.

A Quick Primer in Sexual Harassment Law

Under Title VII of the Civil Rights Act, sexual harassment is:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.

Basically, lawyers put harassment claims into one of two buckets: hostile work environment and quid pro quo. A hostile work environment may arise when a work environment has a lot of sexual comments, kidding, teasing, or worse. It can be created by anyone—boss, coworker, vendor, customer, etc.—although the cases in which the boss is the one making the sexually charged jokes or comments are harder to defend.

On the other hand, a quid pro quo claim (meaning “this for that”) typically involves someone with power requiring something of a sexual nature from a subordinate. The classic example was the casting couch—“sleep with me and I will give you the job.” What a lot of people forget is that just asking for the sexual favor (or perceived sexual favor) may be enough to support a quid pro quo claim. And what is a sexual favor? Asking someone to dinner? A single invitation may be okay, but several invitations or one invitation combined with other allegations of sexually suggestive comments or behavior may be grounds for a claim.

Here are two basic rules about social invitations to keep you out of the sexual harassment spotlight.

Rule #1: Don’t Date or Try to Date Your Subordinates.

You are the boss. When you ask your subordinate employee to a non-business related one-on-one dinner, he or she doesn’t view it as a purely social invitation—their job depends on it. You are the boss, and telling you “no” could have repercussions. You have all the power and this invitation can be viewed as an order.

Rule #2: If You Break Rule #1, It Rarely Ends Well.

The horse is out of the barn once you have asked your subordinate out on what may be perceived as a date. Let’s consider some scenarios.

Scenario A: Boss Jane asked Tom, her associate, to go to dinner. Tom either ignored the invitation or said no. No harm, no foul—right? Wrong. The next day Tom makes a mistake, and Jane chews him out for it. Jane has arguably just delivered on the implied threat that if Tom didn’t have dinner with her there would be consequences. It doesn’t matter how big a mistake Tom made, she is now potentially a defendant in a sexual harassment case.

Scenario B: Tom goes to dinner but just has dinner. He takes an Uber home with no goodbye kiss (even if Jane didn’t ask for one). Tom makes a mistake later, Jane chews him out—see Scenario A.

Scenario C: Tom accepts Jane’s invitation and thinks she is the best thing since sliced bread. He is very interested in pursuing a social/sexual relationship with Jane and so it begins. A month (or a year) later, Tom breaks it off. He makes a mistake (see Scenario A), or Jane is not as nice to him or as helpful to his career as when they were sleeping together (again, Scenario A).

So We Have to Be Robots Rather than Human Beings?

First, you can be a human being and not date your subordinates. Dating, or even attempting to date, subordinates is risky and bad HR, and your labor lawyers will tell you not to do it. Second, I am not saying that there is never a time when you and a subordinate can share a meal—even dinner. However, if you are the boss, you need to be careful both for your and the company’s sake. Some guidelines:

  • There is safety in numbers. Ask the subordinate to have dinner with you and your spouse. If the subordinate is married or has a significant other, invite both of them. If there is no spouse handy, include another colleague. Make clear that this is not a sexual overture.
  • Meet at the restaurant. Driving together to a restaurant smacks of a date and not a business relationship.
  • Lunches are safer and less likely to be misconstrued.
  • When you and a subordinate are traveling, if you can’t bring the client along, be sure to meet in the hotel lobby and not at someone’s room. Be careful about appearances, and keep it professional.
  • Have a business reason for why the dinner should occur. Dining with a subordinate without any actual connection to work can be problematic.

Whether or not your dinner invitation to a subordinate is entirely business related, you are the boss, you hold all the power in the relationship, and you are the potential target in a harassment claim. A sexual harassment claim is rarely filed only against the company—the alleged harasser is a separate defendant and could have personal liability. You need to be careful—make sure your subordinate does not misinterpret your intention, and protect yourself and your company.

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.

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