“Dating on the job is like eating at your desk: Invariably, it’s going to get messy,” said Mark Oldman, co-founder and director of Vault.com. Title VII prohibits employers from discriminating against an employee with respect to compensation, terms, conditions, or privileges of employment because of such individual’s sex. In Meritor Savings Bank, FSB v. Vinson, the U.S. Supreme Court recognized sexual harassment as a type of sex discrimination. “[W]hen a supervisor sexually harasses a subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.” Under Title VII, there are two cognizable claims of sexual harassment: hostile work environment and quid pro quo. A sexually hostile work environment occurs where the harassment is so severe or pervasive that is “alter[s] the conditions of [the plaintiff’s] employment and create[s] an abusive working environment.” Quid pro quo sexual harassment occurs where a boss coerces a subordinate to participate in a sexual relationship or retaliates against her by punishing her for refusing sexual advances. But what about a consensual sexual relationship between a boss and a subordinate? Is that permissible under Title VII?
Although co-workers in sexual relationships may knowingly or subconsciously give each other preferential treatment, favoritism is not usually sex-based discrimination, even if it is bad for business. A “paramour” claim occurs where a supervisor promotes their in-office lover before other more qualified employees, raises their salary, or otherwise grants them benefits not awarded to other employees. However, almost universally, courts have held that a co-worker that is disadvantaged by an employer’s in-office sexual relationship cannot bring an action against that employer for the simple reason that such discrimination is not because of “sex” within the meaning of Title VII. Instead, it is because of a personal relationship; therefore, it is not actionable.
There are, however, three exceptions to the no-liability rule for “paramour” cases: the “implied quid pro quo” scenario, the “ubiquitous sexual favors” scenario, and the “jilted lover” scenario.
In the first exception, the “implied quid pro quo” scenario, a targeted employee voluntarily yields to a supervisor’s sexual advances and receives job benefits in return. Imagine a supervisor who makes sexual advances towards all of the women in the workplace and the woman who consents to those advances is rewarded with a promotion. In this situation, the rewarded employee may be unable to bring an action for sexual harassment, but co-workers may have viable claims. When an employer’s lover receives a promotion, men and women who were qualified but passed over because of the romantic relationship may have standing to challenge the favoritism on the basis that they were discriminated against, arguing that the furnishing of sexual favors was an implied condition of receiving the benefit.
In the second exception, the “ubiquitous sexual favors” scenario, the granting of sexual favors is considered to be widespread within a workplace. As the EEOC warned, widespread favoritism could convey the message “that the managers view women as ‘sexual playthings,’ thereby creating an atmosphere that is demeaning to women.” However, the presence of widespread sexual favoritism directed toward females may not provide a cause of action for male employees, and vice versa. The Southern District of New York dismissed a Title VII claim brought by a male employee who alleged that his supervisors promoted a “demeaning view of women in the workplace” which the plaintiff found “objectionable” and which denied him “the opportunity to work in an employment setting free of unlawful harassment.” The court stated:
Krasner’s concern for a woman’s right to be free of workplace discrimination, and offense taken upon being surrounded by conduct believed to impinge on that right, admirable as it may be, does not make Krasner himself a victim of gender-based discrimination within the scope of Title VII’s protections.
Krasner, however, did not allege that sexual favoritism toward females voluntarily engaging in romantic relationships in the office hindered any advancement opportunities. The court also held that Krasner failed to state a claim for relief under Title VII and did not identify a causal connection between his gender and any hostility he allegedly faced.
In the third exception, the “jilted lover” scenario, an employee becomes bitter after the romantic relationship sours. If the employer does not treat the former lover fairly and appropriately, the employer may expose him or herself to Title VII liability for retaliation. This is not so much of legal theory as common sense; you cannot predict how an ex may lash out against you, especially when you share the same workplace. Lashing out might include such extreme behavior as fabricating sexual harassment in revenge.
Both employers and employees should be aware of how the law regulates office relationships and be cautious when engaging in office romances.