Boss Boinking Coworker, Playing Favorites? Too Bad, Say Courts

            Say you have a coworker, Don Dashing. He’s an idiot. A screw up. Yet he keeps getting promotions, the best leads, the best shifts. Your female boss, Dahlia Desperate, clearly plays favorites. You have your suspicions, and one day you walk in on Don and Dahlia doing the horizontal bop on Dahlia’s desk. Aha! you cry. Suspicion confirmed! You run to Human Resources and file a sexual harassment complaint.

            You tell them that Don got the promotion you were most qualified for. Dahlia never hit on you, but if she had, and you’d been the one lighting up Dahlia’s life, you’d have gotten the job. Sexual harassment. Clear and simple. If you’d had sex with Dahlia, you’d have the job.

            The HR lady looks concerned. She’ll investigate immediately. You’re fired the next day.

            Should you start shopping for beachfront property? Did you just win the lottery? Nope. You probably lose. Here’s why.

            Cases like this one are called sexual favoritism. The courts say that the boss can favor someone they’re having sex with. In most cases, sexual favoritism is perfectly legal.

            Ron Miller, of the Wolters Kluwer blog, recently posted about two new sexual favoritism cases. In one, Zimpher v. Aramark Management Services, our employee hero walked in on his boss’s afternoon delight with a coworker. He reported it and was fired. The court said that, because what happened wasn’t sexual harassment, when he reported it he wasn’t protected from retaliation. Why wasn’t it sexual harassment or sex discrimination? Because the conduct he reported wasn’t directed at him or his status as a man. (Had he filed with EEOC, he’d have been protected from retaliation, even though he’d have had no basis for filing the charge of discrimination, but that’s another ridiculous part of employment law I’ll save for another post).

            In the other recent case, a woman complained about a sexual relationship in the workplace and was also retaliated against. Too bad, said the court. Since the affair and favoritism affected everyone, no matter their sex, it wasn’t sexual harassment. Because it wasn’t sexual harassment, she wasn’t protected from retaliation.

            This isn’t to say that all sexual favoritism is legal. The EEOC has issued a Policy Guidance (that the Courts can ignore if they want to) saying when it thinks sexual favoritism crosses the line. To summarize:

o   Boss plays favorites with consensual lover: legal;

o   Boss plays favorites with lover who was bullied into the relationship in exchange for favoritism: may be sexual harassment for other employees of the same gender as the lover;

o   Favoritism based on sexual favors in the workplace is widespread: may be sexual harassment for other employees of both genders.

o   Isolated instances of sexual favoritism: legal.

But, you argue, treating women (or men) as sexual playthings is discrimination, isn’t it? It’s demeaning to their gender. If the women who boink their supervisors get promoted, doesn’t that send the message to other women that sex is the only way to get ahead in the workplace? Yep. I agree. So far, many courts don’t agree. I won’t get into the legalese on this, but I can direct you to an excellent law review article on the topic if you want more information. Basically, it comes down to what state you live in. For instance, if you’re in California then some sexual favoritism is illegal. In my home state, Florida, it probably is not.

Sexual harassment cases are getting harder and harder to win (again, I’ll save it for another post). If you report something you think is sexual harassment to HR and it turns out not to have been sexual harassment, the employer is allowed to retaliate. If you fail to report sexual harassment and go straight to EEOC instead, your employer has a complete defense to your sexual harassment lawsuit. Catch-22 personified.

There oughta be a law . . .