As bloggers and their readers weighed in on the David Letterman sex scandal, quite a few people described his behavior as either (a) sexual harassment or (b) creating a hostile work environment for all those women who were not engaged in sexual relations with him.
What comes as a surprise to many is that Letterman's behavior probably is neither sexual harassment or the makings of a hostile work environment. What also probably will surprise many is that its not sexual harassment for a boss to bed his/her employee. In order for that relationship to be categorized as sexual harassment, the relationship has be "unwelcomed." Whether or not the relationship was welcomed or unwelcomed is the determining factor in sexual harassment claims.
It is also surprising to many that it does not not create a hostile work environment for everyone else who has to witness the inevitable "paramour preference" that often takes place when there is a boss-employee love affair. Here is the legal rationale for why these relationships do not create a hostile work environment.
Because preferring a paramour discriminates against all non-paramours
of both sexes (it is discrimination because of an existing romantic
relationship, not discrimination because of the sex of the paramour or
even the sex of the complaining employee), such romances are not
covered by Title VII.
The Letterman case made me review a post I wrote about in 2006 about office romances called Smooching On The Clock. One of the more interesting things I learned doing the research for that post is corporations only became concerned about sexual harassment in the late 90's.
Lou dates Mary” was episode 167-- the next-to-last episode of the long-running Mary Tyler Moore program ( 1970-1977). In the episode, Mary has yet another disastrous date, and shares with her friend Georgette that she wonders if she’ll ever find Mr. Right. Georgette then points out that Mary has known Mr. Right all along. With some encouragement Mary asks Mr. Grant (her boss) for a date.
The year was 1977, and while Mary and Lou didn’t get beyond a very innocent kiss before realizing that dating each other was not such a good idea, the writers of the show didn’t have to deal with the potential ramifications that could arise when employees begin a romance because it was the pre- sexual harassment era.
In 1977, when that episode first aired, it would still be another nine years before the U.S. Supreme Court actually recognized the concept of sexual harassment. And, it wouldn’t be until 1998 ─ nearly twenty years after Mary and Lou exchanged that awkward kiss ─ that the Supreme Court ruled businesses could be held liable if sexual harassment occurred in their workplace.
With that ruling, businesses may have become more concerned about the potential risk of office romances, but the ruling has neither created a flurry of new policies about office romances and it certainly hasn’t discouraged them. In fact, the opposite is true—office romances are on the rise, and corporations are dragging their feet when it comes to dictating policy and procedure on dating.
Corporations are really between a rock and a hard spot on this issue. What makes them at risk is that even if a relationship between boss and employee started out as "welcomed," if the relationship ends, the employee could conveniently think that the relationship was actually "unwelcomed" from the git-go. Since about 50% of these relationships do end that is pretty good odds that corporate legal departments are going to have to deal with a jilted lover and his/her sexual harassment claims.
That's where it gets very sticky for businesses. Most corporations do not want to dictate the love lives of employees. Yet, if it means losing a ton of money in lawsuits, they need to be thinking about the issue.
Trying to make sense of the legalities of office romance is the topic of my blog post at BlogHer: Should David Letterman Have Signed a Love Contract?
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