All's Fair in Love and War, Except at Work

All's Fair in Love and War, Except at Work

October 2005
By Kathryn S. Wood Recently, California's Supreme Court significantly expanded the law on sexual harassment by holding that a workplace romance between a superior and subordinate that results in repeated preferential treatment towards the subordinate constitutes actionable sexual harassment of unfavored co-workers. In other words, what was once just gossiped about in whispers around the water cooler, could now wind up the subject of jury-room deliberations. While the fact pattern laid out by the court in the case of Miller v. Dept of Corrections makes the Valley State Prison for Women seem more like Melrose Place than a correctional institution – the prison warden was alleged to have had affairs with at least three women – the California court's holding is fair warning to employers; now it is not just unwelcome sexual advances that must be policed: [A]lthough an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting 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. Would Michigan Courts adopt such a rule? Probably not anytime soon. In Haynie v. State of Michigan, the Michigan Supreme Court held that under the Elliot-Larsen Civil Rights Act's sex harassment provision only protects against conduct or communication that is sexual in nature. A year later in Corley v. Detroit Board of Education, the plaintiff claimed that she suffered an adverse employment action because she had a prior romantic relationship with her supervisor. The Plaintiff's supervisor and former love interest, Smith, allegedly threatened the plaintiff with adverse job action if she did anything to interfere with his current relationship with another co-worker. The Plaintiff alleges that she was also subjected to taunting and "catty" conversations at the hands of her ex's new girlfriend. The court of appeals held that Smith's threats constituted unwelcome sexual communications because they stemmed from Smith's past intimate relationship with the plaintiff. The Michigan Supreme Court reversed that ruling, reiterating that "actionable sexual harassment requires conduct or communication that inherently pertains to sex," meaning inherently sexual in nature. "Verbal or physical conduct or communication that is not sexual in nature is not sexual harassment." Haynie and Corley suggest that unless an individual him or herself is subjected to inherently sexual communication or conduct, a cause of action for sexual harassment will not lie. Thus, when the sexual communication or conduct is directed at someone else than the would-be plaintiff, particularly if that communication or conduct is kept private, no actionable sexual harassment has occurred. The Sixth Circuit Court of Appeals and other federal courts, however, might very well follow the California Supreme Court's reasoning, leaving Michigan plaintiffs with recourse in federal courts. But whether or not other courts ultimately adopt Miller's reasoning is not, for the time being, an employer's only concern. The California opinion opens the door for employees all over the country to file suit based upon the consensual sexual relationships of their co-workers and superiors. As with any sexual harassment suit, defending such a claim would be expensive and potentially embarrassing. So what's an employer to do? A policy that prohibits a supervisor from having a personal relationship with a direct subordinate and that includes a reporting mechanism for other employees who believe they are victimized by the relationship provides some defensibility to a Miller claim. The downside of such a policy is that it encourages spy-like activity on the part of the employer's workforce. Unlike a typical harassment complaint where the harassed victim reports what he or she knows happened to him or her, the Miller claim encourages alleged victims to report interaction that her co-workers are (most likely) working very hard to keep secret from the rest of the workforce. A "dating" policy, however, might also work to prevent romantic relationships between superiors and subordinates from occurring in the first place, thus keeping the workforce focused on business, not monkey business. Kathryn S. Wood is a Member in the Detroit office of Dickinson Wright and practices in the area of labor and employment relations.
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