We’ve got two situations in which third parties are complaining about sexual harassment. In one case, an office couple is “carrying on” in front of another employee who is complaining about a “hostile environment.” In the other case, employees—male and female—are complaining that a co-worker was promoted because she is sleeping with the boss. That sounded like a dangerous situation to me, but now a colleague tells me that can’t be harassment because males and females are being treated the same—badly, but the same. What rights do third parties have when it comes to harassment, and what actions should I take?
— Katherine T., HR Manager in Bakersfield
Katherine’s first question involves a complainant who is not the direct victim of sexual harassment—the complainant is not the target of unwanted touching, sexual remarks, or other sexual conduct. Rather, he or she is a witness to sexual conduct that two workers direct toward each other (apparently mutual and welcome on the part of this so-called “office couple”). California law protects employees who are unintended victims of a sexually hostile work environment.
For example, a California court of appeals heard a case involving such an unintended victim.1 Julie Fisher was a nurse at San Pedro Peninsula Hospital. Fisher complained that a physician grabbed and touched other nurses and made sexual comments directed at these other women. Fisher alleged that the offending physician’s conduct created a hostile work environment because she had to observe and hear the sexual conduct occurring around her. The court agreed that if the doctor’s conduct was sufficiently severe or pervasive enough to give rise to a hostile work environment (and not just isolated incidents), an indirect victim of sexual harassment may state a claim. Although the court ruled that Fisher didn’t allege sufficient facts to establish a pervasive hostile work environment, it allowed her another opportunity to amend her complaint to allege more facts.
In general, an employer may be liable for a hostile work environment created by a supervisor—even if the employer is not aware of or “on notice” of the behavior. In contrast, if the alleged harasser is a co-worker who is not a manager, the employer may be liable once the employer is on notice of the sexual conduct but doesn’t take appropriate action to stop the harassment.
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Returning to Katherine’s situation, if the couple does not include a manager, the employer is clearly on notice here of a possible problem and should therefore immediately investigate to determine whether the office couple’s “carrying on” has violated the company’s sexual harassment policy. If the employer concludes that a violation has occurred, the company must take appropriate steps to stop the sexual conduct and prevent it from occurring in the future.
Katherine’s second question about the employee who was promoted for “sleeping with the boss,” was answered by a California Supreme Court ruling.2 In the case, a manager had a history of sexual relationships with subordinates and promoted only the ones that he favored. Other female subordinate employees who were not promoted filed a lawsuit alleging that such favoritism toward those who submitted to sex with the manager constituted sexual harassment and violated California’s Fair Employment and Housing Act. The high court noted that other courts have held that such sexual favoritism is not unlawful. However, the court ruled that in California, an employee may pursue a sexual harassment claim if the manager’s acts of sexual favoritism were widespread enough to convey the message, expressly or implicitly, that the manager viewed women as “sexual playthings” or that “the way for women to get ahead in the workplace is by engaging in sexual conduct,” thereby “creating an atmosphere that is demeaning to women.”
Accordingly, in Katherine’s case, the employer should immediately investigate to determine whether the manager has created a hostile environment with a pattern of advancement that resulted from employees having sexual relationships with the manager. Even if the investigation does not reveal a pattern of sexual favoritism that violates the sexual harassment policy, Katherine’s company may nonetheless wish to take action to address the employee-relations problem this manager created. Employers should have a conflict of interest policy that prohibits a manager from continuing to supervise a subordinate employee should they become intimately involved. Here, the company may take appropriate action because of a conflict of interest.
Both situations discussed here can also become difficult because the investigations will inevitably touch on the private lives of the affected employees. However, the company may, without violating the employees’ right to privacy, investigate and regulate their conduct during work hours and/or on company premises.
In short, it is not the private relationship but the relationship’s effect on the workplace that is the issue here, and the employer may lawfully: 1)instruct the office couple to restrict their sexual conduct to nonwork hours off-site, and 2) prohibit a manager from continuing to supervise or promote a subordinate who is in a relationship with that manager.
Allen M. Kato, Esq., is an associate at the San Francisco office of the law firm Fenwick & West LLP.
1 Fisher v. San Pedro Peninsula Hospital, Calif. Court of Appeals (Dist. 2) No. B033017, 1989
2 Miller v. Department of Corrections, Calif. Supreme Court No. S114097, 2005