Sexual Harassment and Sex with the Boss

Sexual Harassment and Sex with the Boss

The David Letterman revelations have provided interesting commentary on a number of fronts.  The bizarre extortion attempt claimed by Mr. Letterman and his lawyers seems out of place at the heights of the entertainment industry.  It smacks more of organized crime or the driving plot of a murder mystery novel.  Many people have discussed the effect on Letterman’s career, and the difference between his position and that of politicians caught in similar situations.

To an employment lawyer, though, the most interesting part to explore is how his behavior affects the workplace.  Mr. Letterman has admitted having sexual relationships with people who work for him.  The first nagging question is how consensual these relationships were.  The second is how the relationships affect the morale and behavior of the others in the workplace.

These situations arise commonly in the modern workplace.  People who work long hours may not have time to meet other people, and they get involved with coworkers.   The intensity of the work, or the constant proximity, can lead to affairs.  To the employer, these relationships present solvable problems.   One coworker should not be allowed to supervise the other, and each should be reminded of the sexual harassment policy.  If at any point the relationship becomes nonconsensual, the employer needs to be advised and take prompt action.

But sometimes the “employer” is in reality the same person who is having the affair.  Without knowing the television industry, I’d venture to say that if David Letterman wants an employee fired, or retained, he has the power to make it happen.  A subordinate may happily begin a relationship with him because of his obvious attractions (and if you don’t see them, just trust me, a woman, on this), but not feel so free to break it off, fearing the effect on her career.

When I prepare employment manuals, I always include some way for an employee to complain about sexual harassment at the highest level of the company.  Usually sexual harassment complaints go to a human relations department or the chief executive officer; a company needs an external reporting option, a pressure valve to permit an employee to go outside the company if the top boss is the harasser.

If the relationship is consensual, though, the workers who are not so close to the boss may be jealous of the relationship or the perceived favors to the chosen one.  Solving that problem is not so easy.  Our federal courts do not consider “paramour preference” to rise to employment discrimination.  But the preference can be real, especially when the boss is giving the paramour time off to be with him, or great work assignments.  Sometimes the only reasonable choice for talented employees who feel they cannot rise in the company is to leave.

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