Love in The Workplace- When Relationships Go Awry

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Patricia Kelly

Approximately 40 percent of workers say they have dated someone they worked with over the course of their career, while 18 percent report dating co-workers at least twice in their career. Additionally, 30 percent report they went on to marry a person they dated in the office. This is according to CareerBuilder’s annual office romance survey of more than 3,900 workers.

However, office romances can be tricky. What starts as a friendly, mutual relationship, can end up with claims of sexual harassment, either hostile environment or quid pro quo, and with one or both losing his or her job. For example, unreciprocated feelings that are expressed after a consensual relationship ends might , make the work environment uncomfortable.  Alternatively, a supervisor who is not content with ending the relationship might take adverse actions against a subordinate.

Workplace harassment on the basis of sex is unlawful pursuant to California Government Code § 12940(j)(1) and Title VII of the United States Civil Rights Act of 1964.  Sexual harassment is generally defined as unwanted sexual contact of two main types: (a) quid pro quo harassment, which occurs when employment is conditioned on submission to unwelcome sexual advances, or (b) unwelcomed sexual conduct that was severe or pervasive enough to create an abusive environment for the employee. (2 Cal. Code of Regs. § 7287.6.)

The first, “quid pro quo” harassment, occurs when any employee offers any job benefit, or threatens any job detriment, in exchange for sexual favors. This means that any time an employee promises, either expressly or impliedly, that career advancement may be linked to dating or sex.

The second type of sexual harassment is established when the workplace is permeated with discriminatory intimidation, ridicule and insults that are sufficiently severe or pervasive to alter the conditions of employment and create a “hostile” or “abusive” work environment. This type of harassment most commonly manifests itself in a variety of sexual or sexist comments, negative stereotypes about the victim’s gender, sexual jokes, propositions, lewd remarks or insults directed at one sex but not the other. If the comments are severe or frequent enough that the victim’s belief that his/her work environment is “hostile or abusive” is both objectively and subjectively reasonable, the law is violated. A single incident might create a hostile environment, depending on its severity, such as a sexual assault. (See Doe v. Capital Cities (1996) 50 Cal.App.4^th 1038.)

The gravamen of any sexual harassment claim is that the harassment be “unwelcome.”  (Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 68.)  Even if the victim goes along with the harassment, including jokes in the workplace or submission to a supervisor’s advances, it might later be found that the conduct actually was not “welcomed,” and therefore, unlawful.

Both men and women may sue for sexual harassment. The harasser need not be of a different gender than the victim. (See Cal. Gov. Code Section 12940(j)(1); Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80-81.) The harassment need not be motivated because of sex or sexual attraction; sexual harassment occurs when sex is used to create a hostile work environment. (Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4^th 1547, 1564.) Also, harassment based on gender still is unlawful, even if both sexes are harassed. (Steiner v. Showboat Operating Co. (9^th Cir. 1994) 25 F.3d 1459, cert. den. 513 U.S. 1081 (1995).)

An employee might be the victim of unlawful sexual harassment even if the conduct is not directed at him or her, but towards others in the workplace. To establish sexual harassment when the individual was not directly subjected to offensive remarks or conduct, “plaintiff must establish that the sexually harassing conduct permeated her direct work environment.” (Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4^th 264, at 284-285.)

Co-workers also might make claims that the environment was pervaded by sexual conduct by dating between their supervisor and a subordinate in that dating implies that for one to get ahead in the company, one must sleep with the boss. For example, in Miller et al., v. Department of Corrections et al. (2005) 36 Cal.4th 446, the Court held that although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the message is conveyed to other female employees that they are viewed by management as “sexual playthings” or that the way for women to get ahead in the workplace is to engage in sexual conduct with management.

All employers must take all reasonable steps to prevent harassment from occurring. (Cal. Gov. Code §§ 12940((j)(1) and 12940((k.)) Such steps include the posting of a poster distributed by the California Department of Fair Employment and Housing (“DFEH,”) developing and implementing a sexual harassment prevention policy with a procedure for complaints, informing the complainant of his or her right to be free from harassment and right to complain, fully and effectively investigating a complaint of sexual harassment and taking prompt and effective corrective action if the harassment allegations are proven. Additionally, employers having 50 or more employees must provide at least two hours of classroom or other interactive training and education regarding sexual harassment to all supervisory employees in California. (Cal. Gov. Code § 12950.1)

With respect to internal procedures for sexual harassment claims, the employer should provide alternatives by which a complaint may be raised, in order to avoid limiting the bringing of a claim to someone who is the alleged harasser. The policy also should describe disciplinary action which can be taken for such harassment.

When there is a complaint of sexual harassment, the employer has an obligation to investigate.  (Cal. Gov. Code § 12940(k).) Witnesses should be interviewed and decisions made as to credibility. Although not required, one possibility is to hire a neutral, outside investigator who is experienced with these claims. Often an employer is reluctant to make a determination as to the complaint if there is conflicting evidence. However, a decision must be made, so that appropriate corrective action can be taken. The complaining party then should be assured that appropriate action has been taken, although the specifics of that action often are not disclosed due to the privacy interests of the harasser.

Often, outside investigators are retained in order to reduce the risk of a claim of bias, although such claims often are made anyway, as the investigator is working for and paid by the employer. There also is an issue as to where the investigation will take place. Generally, an investigation is conducted at the employer’s offices, although an off-site, neutral location might make the complaining party more comfortable. Another issue is whether an attorney for the complaining party should attend the investigation interviews. With respect to the investigator’s notes and report, if a company is going to rely on having performed an adequate investigation as a defense to the complaining party’s claims, it must permit discovery into the investigation, including the notes and report.

The Fair Employment and Housing Act (“FEHA”) also prohibits retaliation for the bringing of a sexual harassment complaint or participating in an investigation. Complaining parties should be informed that retaliation will not be tolerated and that if there is retaliation, it should be reported immediately. If retaliation is not addressed, the employee may have an additional cause of action.

Under California law, which is broader than federal law on this subject, only employers with five or more employees can be liable for unlawful discrimination.  However, unlike other types of unlawful discrimination, claims that are specifically for sexual harassment can be brought against an individual or employer with fewer than five employees.  (Cal. Gov. Code §§ 12940(j)(1) and 12940(j)(4)(a).) Employers not only can be held liable for harassment of their employees, but also unlawful harassment of applicants and persons providing services pursuant to a contract of employment.  (Cal. Gov. Code § 12940(j)(1.))  An employer also can be held liable for sexual harassment by non-employees, if the employer knew or should have known that a non-employee (such as a contractor or customer) had sexually harassed an applicant, employee or person providing services to the employer and failed to take immediate and appropriate corrective action.  (Cal. Gov. Code § 12940(j)(1.).)

Before filing a lawsuit alleging sexual harassment under the California Government Code, a complaint must be filed with the DFEH. Such a complaint must be filed within one year of the act about which the complaint is brought with respect to quid pro quo harassment, and within one year of any act which is part of a hostile work environment claim. After the DFEH conducts an investigation, or there is a request by the complaining party, a case closure letter (often referred to as a “right-to-sue letter”) is issued. Under state law, if a lawsuit is being brought, it must be brought within one year of the issuance of the case closure letter. (Cal. Gov. Code § 12965.) If a complaining party wishes to file a complaint under federal law with the United States Equal Employment Opportunity Commission (“EEOC”) about work in California, he or she must do so within 300 days of the act, and file a lawsuit within 90 days of the receipt of a notice of the EEOC case closure letter, although the 90 day time period might be tolled if there is an ongoing DFEH investigation. (42 U.S.C. § 2000e-5(e)(1).)

A victim of harassment can recover compensatory damages for emotional distress and lost wages, injunctive relief such as reinstatement to a position, and attorney’s fees and costs.  Also, under the FEHA, punitive damages are available for oppression, fraud, or malice. However, there must be personal oppression, fraud or malice, or, with respect to a corporation, such oppression, fraud or malice must be on the part of a corporate officer, director or managing agent. (Cal. Civ. Code § 3294(b)-(c)); White v. Ultramar, Inc.  (1999) 21 Cal.4^th 563.)

There are a number of related claims which might be brought along with a claim of unlawful sexual harassment, which do not require an exhaustion of administrative remedies prior to the filing of a lawsuit and some of which might have a longer statute of limitations than one year. Some such claims might be wrongful termination in violation of public policy, constructive discharge, and other common law torts, such as negligent hiring or retention, or assault and battery.

Sometimes an individual is wrongfully sued for sexual harassment. An accused employee who successfully defends against such charges might be entitled to indemnification from his or her employer, as an employer must indemnify an employee for all that the employee necessarily expends in direct consequence of the discharge of his duties.  (Cal. Lab. Code § 2802,)

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About the author:

Patricia Kelly practices employment law and commercial litigation.  She is with Sohnen & Kelly in Orinda, whose website is www.sohnenandkelly.com