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Love hurts at the office

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Call it frisky business.

Managers and supervisors should not look the other way when it comes to office romance. Affairs between supervisors and subordinates may not only be disruptive and interfere with work and productivity, but they may lead to accusations of sexual harassment in California as well.

Dating and relationships among coworkers are common in today's workplace. According to the American Management Association's 2003 survey on workplace dating, two-thirds of managers found romantic involvement between employees acceptable, and 30 percent of those polled had dated a coworker at some time.

According to Psychology Today, the emerging awareness of love at the office reflects a whole set of changing rules and relationships in the workplace. One columnist says that companies that find a way to accommodate love among workers may be fostering the psychological health of modern men and women. "The approach could have a positive impact on the competitive health of the company itself."

Employers, don't fall for that. These attitudes are based on misguided thinking.

In an effort to prevent such problems, employment lawyers have long advised their clients to institute policies (known as "non-fraternization" policies) forbidding dating or sexual relationships between supervisors and their subordinates. Not all employers have implemented these policies, though.

Unfortunately, many companies do not frown upon these relationships, and some turn a blind eye.

But a recent California Supreme Court decision makes it riskier for employers to ignore sexual relationships between supervisors and their subordinates. In July the court ruled that a supervisor 's consensual sexual affairs with, and preferential treatment toward, female employees can create a sexually hostile work environment for other male and female employees under the California Fair Employment and Housing Act (Miller v. Department of Corrections).

The court held that while an isolated instance of sexual favoritism on the part of a supervisor toward a female employee with whom he is having a consensual sexual 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 demeaning message is conveyed to female employees that they are viewed by management as 'sexual playthings' or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management."

The case arose in California's Department of Corrections, where two female employees claimed that a warden 's affairs with three other women led to promotions for his three lovers and to threats, abuse and the loss of opportunity for the two other female employees. There was evidence that the warden promised and granted unjustifiable and unfair employment benefits to his three lovers, that advancement for women at the Department of Corrections was based upon sexual affairs, that the warden viewed female employees as "sexual playthings," and that his conduct conveyed this message in a manner that had an effect on the work force as a whole.

How should employers respond to the court 's decision? Fortunately, few cases involve so much favoritism and so many tangled and complicated sexual affairs in the workplace. But the decision will no doubt set a higher standard for work-place behavior, especially among California employers. Unfortunately, the court failed to clearly establish when workplace "gets to the point where women are 'sexual playthings.'"

The facts in the Miller case were a bit extreme, but it is likely to spawn numerous lawsuits based on less extreme facts. Because cases will boil down to the effect of the supervisor-subordinate relationship on a reasonable person, employers will have to do more to make sure that a hostile work environment is not created as a result of consensual sexual relationships between their employees.

Bottom line: You should implement an appropriate "non-fraternization" policy, and don 't hesitate to discipline supervisors who have affairs with individuals under their control. In rare circumstances, some companies have required that the individuals involved in sexual relationships sign a "love contract" acknowledging the voluntary nature of the relationship.

Failing to take these steps may send the message to other employees that having an affair with a supervisor is the way to get ahead. As reflected by the court's decision in the Miller case, that 's a message you don't want to send.


Hoffman is the managing partner of the San Diego office of Fisher & Phillips LLP, a national law firm that exclusively represents management in labor and employment matters. Hoffman can be reached at chris.hoffman@sddt.com.

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