Perhaps this sheds a little more light on the subject:
feds.com
COMPLAINTS OF SEXUAL FAVORITISM*
by Al Celmer, Esq.
1. Actions Under Title VII
A survey of white-collar workers found that 64 percent of the respondents knew of at least one romantic relationship between co-workers. Robert E. Quinn, Coping with Cupid: The Formation, Impact and Management of Romance Relationships in Organizations, 22 Admin. Sci. Q. 42 (March 1977). A high percentage of these office romances involved a male in a higher position than his female partner. Quinn, supra.
The organizational fallout of such relationships manifests itself in the form of gossip, complaints and gripes, hostilities, distorted communications, damage to the image or reputation of the workplace, and redistributed work. Joan E. Van Tol, Eros Gone Awry: Liability Under Title VII for Workplace Sexual Favoritism, Indus. Rel. Law J. Winter 1991 pp. 153-182, 165. Moreover, when office romance between a supervisor and a subordinate leads to favoritism of that subordinate, that favoritism may be actionable under Title VII of the 1964 Civil Rights Act, as amended.
The EEOC's 1990 Policy Guidance on Employer Liability under Title VII for Sexual Favoritism recognizes a cause of action for sexual favoritism in the workplace which adversely affects the employment opportunities of third parties. The EEOC's Guidance, however, leaves a wide sphere of amorous behavior outside the reach of Title VII. In the EEOC's opinion, isolated instances of favoritism toward a paramour are not prohibited under EEO law. The Guidance states:
An isolated instance of favoritism toward a paramour (or a spouse or 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. A female charging party who is denied an employment benefit because of such sexual favoritism would not have been treated more favorably had she been a man nor, conversely, was she treated less favorably because she was a woman.
For sexual favoritism to be actionable by disadvantaged male or female employees, it needs to be the product of either implicit quid pro quo harassment and/or hostile work environment harassment. In such instances, the woman who obtained the job benefit did so by granting sexual favors as a condition of employment, a condition that would not have been imposed on men, and sexual discrimination is established.
Quid pro quo sexual harassment is not easy to prove even where the complainant is the person who alleges that she was directly the victim of the misconduct. It is doubly hard to prove when the complainant is a third party who is not privy to the intimate details of the relationship between a supervisor and a co-worker and of the manner in which the relationship came about. The victim of the harassment may not wish to blow the whistle on the harasser when she is enjoying economic benefits as the result of submitting to his sexual advances. The difficulty of proving sexual favoritism was demonstrated in Janet Jones v. Frank, Postmaster General, U.S. Postal Service, EEOC No. 01912961(01/16/92), 92 FEOR 3215. The complainant based her appeal on 29 C.F.R. 1604.11(g), which provides:
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.
The complainant alleged that she was nonselected for promotion because of favoritism shown by the selecting supervisor toward his paramour, who was chosen for the promotion. Both the selectee and the selecting official denied that a sexual relationship existed between them. The only evidence that the complainant could offer was that the selecting official had given the selectee flowers and a birthday cake and that he had socialized with her and picked her up at the airport on one occasion. This evidence, although it showed that the selecting official liked the selectee, fell short of proving that the promotion was the product of quid pro quo sexual harassment.
Sexual favoritism cases have been rare in the federal sector. One very successful case bears study. In Catherine Broderick v. Ruder, Chairman, Securities and Exchange Commission, 685 F. Supp. 1269 (D.D.C. 1988), 88 FEOR 5068, the complainant, a female staff attorney, charged that there had been a hostile and abusive environment in the workplace for virtually the entire eight years she had worked for the SEC. It is interesting that most of the incidents of sexual harassment cited by the complainant did not involve her personally. Instead, they related to female co-workers who had received raises and rapid promotions allegedly as a result of having sexual relationships with several agency supervisors. The plaintiff charged that one supervisor had become drunk at a party and had untied her sweater and kissed her. Another supervisor had given her a ride home and then had barged into her apartment and toured it, including the bedroom. With regard to female co-workers, the evidence was more conclusive. One supervisor admitted having a three-year sexual relationship with a secretary at the agency. During that period, the secretary received three promotions, a commendation, and two cash awards. There was evidence that another supervisor was noticeably attracted to another female employee and spent much time socializing with her during business hours. She advanced from GS-11 to GS-14 in slightly more than two years. The evidence of a sexual relationship between a third supervisor and a third female employee consisted of testimony that they frequently had long lunches together and that they jogged together, and occasionally dined and drank together. The two spent the night in the same hotel room during a trip to the shore. During a single 12-month period, that employee received two grade promotions, a $300 cash award, and a perfect score in each element of her performance appraisal.
The Court found that these activities had created a hostile work environment for the plaintiff and several other employees who testified for the plaintiff. The Court held that Title VII was violated "when an employer affords preferential treatment to female employees who submit to sexual advances or other conduct of a sexual nature and such conduct is a matter of common knowledge." Broderick, supra. Even a woman who was not herself harassed has standing to bring a Title VII claim if she was forced to work in an atmosphere in which such harassment was pervasive. Id. The Court further found that the preferential treatment bestowed on the objects of the supervisor's desires undermined the plaintiff's motivation and work performance and deprived the plaintiff and others of promotions and job opportunities.
The District Court for the District of Columbia rejected the employer's defense that the case involved social/sexual interactions between employees, which Title VII was never intended to regulate. The Court held that "consensual sexual relations, in exchange for tangible employment benefits, while possibly not creating a cause of action for the recipient of such sexual advances who does not find them unwelcome, do, and in this case did, create and contribute to a sexually hostile working environment." Id.
The EEOC in its 1990 Policy Guidance on Sexual Favoritism, referred to and approved of the ruling in Broderick. The Commission stated:
If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors.
The Commission noted that, although Broderick was decided under a hostile environment theory, it could also have supported a finding of implicit quid pro quo sexual harassment because "the managers, by their conduct, communicated a message to all female employees in the office that job benefits would be awarded to those who participated in sexual conduct." EEOC Policy Guidance on Sexual Favoritism.
2. Agency Disciplinary Actions for Sexual Favoritism
Federal agencies have, at times, meted out harsh disciplinary penalties to employees found to have engaged in sexual favoritism. Such discipline has included relieving a supervisor of his duties and transferring him and allegedly forcing him to retire, after a subordinate resigned charging the supervisor with showing preference to his paramour. Nicholas Grand v. Dalton, Secretary of the Navy, EEOC No. 03930067(10/18/93), 94 FEOR 3125. The chief civilian personnel officer, a Senior Executive Service employee with 23 years of service, was removed for carrying on an adulterous affair with a co-worker (adultery being against agency regulations) and for using agency E-mail to send love letters and comments disparaging the paramour's supervisor. The charges against him stated that his relationship could reasonably be expected to create the appearance of his giving preferential treatment to his paramour, could reasonably be expected to result in impeding government efficiency, and could reasonably be expected to create the appearance that he had lost his independence or impartiality. The notoriety of the case and the loss of confidence in a person who occupied a position of trust were cited by the U.S. Merit Systems Protection Board in sustaining the removal action. Peter K. Dolezal v. Department of the Army, MSPB No. PH0752920600-I-1(06/07/93), 93 FMSR 5193, appealed at 93-3436 (Fed. Cir. filed 07/07/93).
* Editor's Note: This article is excerpted from Sexual Harassment of Federal Employees: How to Recognize It, Deal With It, and Prevent It, published by LRP Publications. For more information, call 1-800-341-7874, extension 319. |
