Love beneath the (docket) sheets: office romance and sexual discrimination law.

• Author: Forst, Alan Orantes

The December 14, 1998, cover story of U.S. News & World Report,[1] titled "Love in the Office," deals with the topic of office romance, along with its evil cousin, sexual harassment law suits. The article quotes Dennis Powers, author of The Office Romance: Playing With Fire Without Getting Burned, as stating, "Today's fling is tomorrow's filing." The article goes on to discuss "the costs of inaction," i.e., sexual discrimination and sexual harassment lawsuits, and notes the existence of the "love contract," devised by national employment law firm Littler Mendelson to concisely record that the coworkers "independently and collectively desire to undertake and pursue a mutually consensual social and amorous relationship."[2]

There are several forms of employer costs associated with office romances. The most publicized cost probably is that associated with legal damages when a court finds the employer legally liable for sexual harassment. Two of the U.S. Supreme Court's June 1998 decisions, Faragher v. City of Boca Raton, - U.S. -, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998), and Burlington Indus. v. Ellerth, U.S. -, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998), involved claims that the plaintiffs had been victimized by supervisors' unwelcome sexual advances. However, neither of the plaintiffs in Faragher and Ellerth engaged in a sexual relationship, consensual or otherwise, with the supervisors who allegedly made sexual advances toward them, and thus they do not fit into the scenarios that are set forth below.

The subject of the Supreme Court's rulings on employer liability for unwelcome sexual harassment was discussed by Jason Gunter and Tammie Rattray in the October issue of The Florida Bar Journal in their article, "Recent Developments in Employer Liability for Sexual Harassment--Ellerth and Faragher."[3] Rather than revisit this subject, this article will address three scenarios in the context of an actual or presumed office romance, which involves, to some degree, a "voluntary" sexual relationship.

(A "sexual relationship" need not involve sexual intercourse--in fact, one of the first appellate decisions to address the issue of "sexual favoritism" commented that the district court had "seemingly attempted to draw an inexplicable distinction between sexual intercourse and other (arguably lower) forms of sexual conduct." King v. Palmer, 778 F.2d 878, 880 (D.C. Cir. 1985). The circuit court's decision declared that "[s]uch a distinction finds no support in the governing case law and we can discern no good reason to carve out such an exception in this case.")

Scenario One: Sexual Favoritism

Charlotte is a longtime employee of the company. Charlotte applies for a promotion. Charlotte's qualifications and experience are deemed to be superior to most of the other applicants. However, Gennifer, a less experienced and apparently less qualified woman who was originally ranked ninth out of 11 applicants, is selected for the position after the requisite qualifications for the position are rearranged in a manner designed to aid Gennifer. Charlotte later learns that Gennifer is the girlfriend of the company's CEO and that the officials who changed the qualifications are appointees of the CEO.[4]

Does Charlotte have a viable sexual discrimination claim if Charlotte can prove that, but for the selectee's consensual sexual relationship with the company CEO, Charlotte would have received the promotion? Does the gender of Charlotte matter?

The Equal Employment Opportunity Commission's guidelines define sexual harassment as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature ... when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

29 C.F.R. [sections] 1604.11(a) (1998).

The Supreme Court had previously deemed the first two forms of sexual harassment as "quid pro quo" sexual harassment, as the victim of this form of harassment receives or does not lose job benefits in exchange for his or her submission to the unwelcome sexual advances or requests for sexual favors. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67-68 (1986). The third form of sexual harassment has been termed "hostile environment" sexual harassment, and a finding of hostile environment harassment does not require an economic effect on the complainant's employment.[5]

In its landmark 1986 decision, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the U.S. Supreme Court noted:

[T]he fact that sex-related conduct was "voluntary," in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.

Id. at 68, citing 29 C.F.R. [sections] 1604.11(a) (1986).

Some feminist scholars would argue that "[w]hen a formal power differential exists, all sexist or sexual behavior is seen as harassment, since the woman is not considered to be in a position to object, resist, or give fully free consent ... ,"[6] and at least one law professor has written that shielding employers who enter into consensual relationships with employees from Title Vii actions sends other employees the message that they must use their sexuality to advance in the workplace and, thus, preferential treatment of a decision maker's sexual partner should be "prohibited by Title VII regardless of the nature of the underlying relationship."[7] Nonetheless, the Equal Employment Opportunity Commission (EEOC),[8] and federal[9] and Florida[10] courts have pretty uniformly[11] held that an employer is not liable under Title VII of the Civil Rights Act of 1964, as amended, if an employee receives preferential treatment because of a consensual office romance with a supervisor, i.e., a relationship that is both voluntary in the sense that the employee is not in the relationship against her will, and is consensual as the employee is not "submitting" to sexual advances or requests for sexual favors in return for employment benefits, and there is no other evidence that a relationship with a supervisor is a term and condition of employment.

The EEOC Policy Guidance on Employer Liability under Title VII for Sexual Favoritism breaks "sexual favoritism" down into three categories. The first category covers the situation set forth in Scenario One, an isolated instance of favoritism toward a "paramour." The EEOC policy guidance declares that Title VII does not prohibit isolated instances of preferential treatment based on consensual romantic relationships--"An isolated instance of favoritism to a `paramour' (or a spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders."

The EEOC policy guidance was issued in early 1990,[12] and the conclusion that Title VII does not prohibit preferential treatment based on a consensual relationship relies in large part on a 1986 Second Circuit Court of Appeals decision, DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986), cert. denied, 484 U.S. 825 (1987). This case involves the sex discrimination claims of seven male respiratory therapists, who argued that promotion requirements were altered (possession of a certification that they all lacked was added as a criterion) in order to disqualify them for the position of assistant chief respiratory therapist, thus ensuring the promotion of a woman with whom the program administrator of the respiratory therapist department was romantically involved (she had the requisite certification).

The circuit court's decision reversed the district court's decision in favor of the plaintiffs, with the circuit court decision stating, "We can adduce no justification for defining `sex,' for Title VII purposes, so broadly as to include an ongoing, voluntary, romantic engagement." Id. at 307. In reaching this conclusion, the court reasoned that "[t]he proscribed discrimination under Title VII must be a distinction based on a person's sex, and not on a person's sexual affiliations." Id. at 306-07. The court also examined the EEOC's Guidelines on Discrimination Because of Sex, particularly 29 C.F.R. [sections] 1604.11(g), which states, "Where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit." 29 C.F.R. [sections] 1604.11(g). The court concluded that "submission" as used in [sections] 1604.11(g) "clearly involves a lack of consent and implies a necessary element of coercion or harassment."

[The defendant's] conduct, although unfair, simply did not violate Title VII.... [The plaintiffs] were not prejudiced because [the...