#Hertoo? Jury to Decide if Manager’s Affair with Boss was Consensual

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A federal court in Louisiana recently addressed the legal consequences of mixing work and pleasure in a case in which a company’s HR manager alleges she felt obligated to have sex with one of her superiors. No “That’s what she said” jokes or inadvertent double entendres in need of a punch line here. This case is about two people having sex and whether, at the end of the day, one person’s authority over the other made her do something she otherwise wouldn’t have done. Sound familiar? Like every other headline or news story you’ve seen in the last 6 months?sexual harassment

Let’s face it. Sexual relationships between coworkers present a risk, and the issue has been placed in the spotlight as a result of the #MeToo movement. If one partner in a workplace romance has authority over the other, there’s a chance their motivations are, or may be characterized as, something other than purely consensual. And even if neither partner has any workplace power over the other, there’s a chance that one of them could perceive or later characterize an encounter as nonconsensual.

Even if that doesn’t happen, unnecessary drama, distraction, and disruption can occur when romance enters the workplace. When an employee alleges that sexual advances or activity was unwelcome, civil claims of sexual harassment and criminal prosecution for sexual battery or rape can occur.


Unless the players are engaging in sexual activity as a spectator sport and have lots of witnesses and video to back up what really happened at the time, there’s a good chance that faulty memories, selective amnesia, broken hearts, vengeance, angry spouses (more on that in a bit), and other circumstances will cloud the issue of whether the behavior was welcome. And don’t expect a quick pretrial resolution when disputes that depend on the parties’ intent and credibility land in court. Instead, you should get ready for trial, as the company in this case learned the hard way.

Company Tries to Do the Right Thing

In 2011, a construction company decided to hire its first employee dedicated to HR, so it created a position titled “HR manager.” The new HR manager lacked experience heading an HR department, but the owner of the company decided to take a chance because she was a “smart, young lady” and he was willing to send her to training.

Although the HR manager never received any training, her superiors were pleased with her work. She created an employee handbook for the company that included a sexual harassment policy describing unacceptable behavior and outlining a reporting procedure.

Now, Here’s What She Said About the Sex . . .

The company later hired a general manager who reported directly to the owner. According to the HR manager, he began sexually harassing her not long after he was hired. She alleged that on one occasion when she went to his office to discuss work matters, he asked her questions of a private and sexual nature, made a comment about oral sex, closed and locked his office door, and exposed himself to her.

She said that although his questions made her uncomfortable, she answered them because he was her manager and she thought objecting would offend him. And she felt intimidated and pressured to perform oral sex on him.

But in spite of her alleged misgivings, almost every subsequent interaction she had with the general manager was sexual, including receiving pictures of his private parts almost daily and acquiescing to his request that she provide him pictures of her naked, sometimes performing sexual acts. She even drove herself to his house to engage in sexual intercourse because she felt she couldn’t decline. In fact, they engaged in sexual activity approximately 25 times in 9 months—in his office, at his home, in her car, and in hotel rooms.

According to the HR manager, she felt obligated to engage in sexual activity with the general manager because he had significant power and control over her at work. In fact, when she purportedly tried to end all contact with him, he told her that she should comply with his requests for sex to keep her job.

And Here’s What He Said . . .

The general manager told a different story about his relationship with the HR manager. According to him, she initiated their first encounter when she made a comment about her breasts, closed his office door, and propositioned him. He also said it was her idea to meet at his home the first time they had sex.

In fact, the general manager maintained they had a consensual, loving relationship. She even told him she loved him, wanted to marry him, and wanted him to be the stepfather of her children, he said. And she reciprocated his text messages and professions of love, although, according to her later account of their relationship, she only did so because she felt he expected it.

An ‘Emotional Affair’

Nine months into her “relationship” with the general manager, the HR manager notified her immediate supervisor (another woman) that she was resigning. During their meeting, they discussed why she wanted to resign, and she explained that she wanted distance from the general manager.

The supervisor asked if they were involved, but the HR manager denied any sexual relationship, describing it instead as an “emotional affair.” She allegedly didn’t want to reveal the affair because she was trying to save her marriage. After giving notice of her resignation, she stayed on for a few weeks to wrap up some work.

In the meantime, the HR manager’s husband saw an e-mail on her phone in which the general manager expressed his love and longing for the day they could be together. Although the HR manager continued to deny the affair, her husband called the owner of the company and said he believed they were having an affair and the general manager had engaged in inappropriate behavior.

A few days later, several of the company’s female employees shared information with each other privately and concluded that the general manager had behaved inappropriately not only with the HR manager but also with other employees. He reportedly propositioned one employee via text message and had what was described as a nonconsensual sexual encounter with another.

The HR manager and the other women met with the owner of the company, who said he wished they had informed him of the situation earlier and assured them that he would take care of it. The owner reportedly expressed concerns about maintaining confidentiality and losing the general manager, who was a key player at the company.

Also, unbeknownst to the owner, his wife went to the office to speak to one of the women and ask if there was a way to work things out that would allow the general manager to stay because he freed up the owner to spend more time with his family.

Sometime after the HR manager’s last day of work, the owner met with the general manager to discuss the allegations against him. He admitted to being in love with the HR manager but denied any inappropriate behavior. The owner suspended the general manager from his duties while he sought legal advice about the company’s rights with regard to his employment contract. The general manager was told not to contact any employees during the legal review. However, when the owner learned that he had ignored that request, he fired the general manager and gave him a severance package.

The former HR manager and the employee who allegedly had a nonconsensual sexual encounter with the general manager sued the company for a hostile work environment based on sexual harassment under Title VII of the Civil Rights Act of 1964 and Louisiana’s employment discrimination law, among other things. The company asked the court to dismiss the HR manager’s claim of sexual harassment and find that punitive damages under Title VII were not available. The court declined to dismiss the claims.

Questions of Credibility and Intent Trouble the Court

Explaining the legal standard that applies to an employee’s claim of sexual harassment, the court observed that the employer’s liability depends on the “status of the alleged harasser.” If the harasser is a coworker, the employee must show that she experienced unwelcome harassment; the harassment was based on her gender; it was sufficiently severe or pervasive to affect a term, condition, or privilege of employment; and the employer knew or should have known about the harassment and failed to take prompt remedial action.

If the alleged harasser is a supervisor, the employee need not prove the employer knew or should have known about the harassment and failed to correct it because the supervisor’s status as an agent of the company imputes knowledge of his alleged harassment to the company.

Instead, in a harassment case involving a supervisor, the employer can present an affirmative defense to liability by showing that (1) it exercised reasonable care to prevent and correct the harassing behavior and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities it provided. In this case, it was clear that the general manager was a supervisor, so the company asserted the two-part defense to the HR manager’s claim.

As for whether the alleged harassment was sufficiently severe or pervasive to alter the terms and conditions of employment, the court explained that the harassment must be both objectively and subjectively offensive behavior that a reasonable person would find hostile or abusive and the victim in fact perceived the situation that way. The court observed that deliberate and unwanted touching of intimate body parts is often found to be a severe form of harassment.

If true, the conduct alleged by the HR manager—from the general manager talking about sexual matters, to exposing himself, to his unrelenting pursuit of an unwanted sexual relationship—would be sufficient to meet the “sufficiently severe and pervasive” part of her burden. In fact, the court noted that the only true dispute was whether the general manager’s actions toward the HR manager were unwelcome. If his behavior was welcome and consensual, it wouldn’t be unlawful harassment.

The HR manager maintained that her sexual encounters with the general manager were unwelcome, and her participation in the affair was the result of coercion and a sense of obligation to comply because he was her boss. The company argued that other facts reflected a consensual relationship, including the frequency of their encounters, the explicit videos she sent him, and her professions of love for him. The company also argued that she didn’t end the relationship until she found out about his alleged advances toward other women.

The court concluded that the conflicting accounts of how the parties perceived and intended their actions presented difficult issues that could be resolved only after determining who was more credible. As a result, the court stated that it couldn’t decide the issue on a motion, and the material factual issues would have to be decided by a jury at trial.

Constructive Discharge or Resignation?

The HR manager also alleged that she was constructively discharged, meaning her working conditions were so intolerable that a reasonable person in her position would feel compelled to resign. If she was constructively discharged, the company’s two-part defense to her claim of sexual harassment by her supervisor wouldn’t be available. In other words, the court explained, an employer is “strictly liable for supervisor harassment that culminates in” a tangible employment action.

To evaluate whether a constructive discharge occurred, courts consider a variety of factors, including whether there was a demotion, reduction in pay, diminished job responsibilities, reassignment to menial or degrading work, or badgering or humiliation by the employer calculated to encourage the employee’s resignation. The court noted that proving constructive discharge based solely on alleged harassment, rather than other factors, is a high burden.

The HR manager argued that she felt she needed to resign to remove herself from the situation and save her marriage and family. She argued that her marriage was in trouble because of the general manager’s alleged harassment. She didn’t experience a demotion or decrease in pay, reassignment to less favorable duties, or any other negative job changes.

However, the court noted that the credibility questions surrounding the consensual nature of her relationship with the general manager were key to understanding whether she resigned or was constructively discharged. Again, that’s something a jury would have to decide at trial.

‘Interesting Twist’ to Employer’s Defense

The company asked the court to conclude that it had offered sufficient evidence to support the affirmative defense to supervisor sexual harassment if the HR manager failed to establish constructive discharge. As for whether the company exercised reasonable care to prevent and correct the harassing behavior, the court said that having a policy that clearly defines and prohibits sexual harassment and includes a reporting procedure may show the employer exercised reasonable care. The company’s policy appeared to be sufficient.

However, the court noted an “interesting twist” in this case because the employee who filed suit created the policy and was clearly aware of it, but other evidence cast doubt on whether the company’s “efforts to prevent sexual harassment throughout its organization were reasonable or sufficient.”

In particular, the owner of the company didn’t review the handbook or provide any training to the HR manager. When new employees joined the company, they were given a copy of the handbook, but the HR manager didn’t review it with them. None of the employees or managers received training on the handbook or the sexual harassment policy. Thus, the court was unable to conclude from the conflicting evidence that the company exercised reasonable care to prevent or correct harassing behavior.

As for whether the HR manager unreasonably failed to take advantage of the reporting procedure set forth in the handbook, she clearly failed to report the alleged harassment to her immediate supervisor. When she resigned, she merely said she wanted to put distance between herself and the general manager, and in fact, she tried to conceal their relationship numerous times.

The HR manager countered that there was no effective channel through which she could make a complaint, citing what she contended was the owner’s ineffective response to another employee’s sexual harassment complaint. The court noted that didn’t explain why she failed to report the matter to her immediate supervisor. However, because there were questions for a jury about the first part of the affirmative defense, the court deferred consideration of the second part of the defense for trial as well.

Finally, the court considered whether the company could be liable for punitive damages, which are available when an employer acts with malice or reckless indifference to an employee’s federally protected rights. The court noted that an employer may avoid punitive damages by showing it made good-faith efforts to comply with Title VII.

Citing its decision to suspend and ultimately discharge the general manager, the company argued there was no evidence that it acted with malice or reckless indifference to the HR manager’s rights. The HR manager countered that because it didn’t train its workforce on sexual harassment, the company couldn’t show it made a good-faith effort to comply with Title VII. The court found this issue was also fraught with factual discrepancies that could only be resolved through trial. Sobolak et al. v. CW&W Contractors, Inc., No. 15-1711 (W.D.La., January 22, 2018).

#Wakeup—Every Employer Can Do Better

The #MeToo movement and its flood of harassment allegations against high-profile figures and entire industries is a wake-up call for employers that thought sexual harassment was somebody else’s problem. This case highlights how a seemingly consensual relationship between two managers can quickly turn into an ugly legal affair.

If you think sexual harassment isn’t your problem or you’ve done everything you can, you’re kidding yourself. Take the time to review your policies. Do they clearly define the type of behavior that’s prohibited, offer effective alternative reporting mechanisms, and protect against retaliation? Have you clearly communicated your policies to everyone and trained your managers on harassment prevention? Does your company have qualified personnel who can handle complaints and enforce policies? Are office romances permitted? If so, what steps have you taken to prevent one party from using his employment authority over the other? Do you take complaints seriously, implement remedial measures, and follow up afterward? What’s the culture at your company with respect to allegations of workplace harassment and gender equality?

The employer in this case would be in a better legal position if it had done some things differently. While the company was heading in the right direction by hiring someone dedicated to HR and publishing a handbook, it appears the HR manager lacked the experience or authority to ensure the policies were effectively communicated and enforced.

Simply hiring an HR representative and having a handbook may not be enough. It doesn’t appear that the HR manager, the owner, or anyone else communicated the company’s expectations about relationships between coworkers or supervisors and subordinates. The company apparently didn’t provide any training on harassment prevention for managers, and the handbook and harassment policy were never reviewed with employees. And if the company had promptly addressed the allegations with the general manager, it could have taken remedial action sooner.

Finally, the HR manager was allowed to resign even after the harassment allegations came to light. Had the company made it clear to her that her resignation wouldn’t be necessary, her allegations would be promptly investigated and the appropriate remedial action taken, and she would be permitted to remain in her job without fear of retaliation or further harassment, the constructive discharge claim might have been avoided.

Jennifer L. Anderson is an editor of Louisiana Employment Law Letter and a senior partner in Jones Walker’s labor and employment practice group. Anderson can be reached at janderson@joneswalker.com or 225-248-2040.

The post #Hertoo? Jury to Decide if Manager’s Affair with Boss was Consensual appeared first on HR Daily Advisor.

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