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December 08, 2009
Beware of Supervisor/Subordinate Affairs
There’s been much media talk lately about Dave Letterman’s affairs, not to mention the one involving ESPN’s Steve Phillips. In those cases, the personal ramifications for the two men were damaging—the kind of fallout that’s typical of such entanglements, even when the participants are just ordinary, non-high-profile people. But guess who else could be liable? Yes, their employers.

Are such relationships none of your business? Most employers recognize that people who work closely together often become intimate; a CareerBuilder survey found that 40 percent of office workers polled admitted to having dated a co-worker. And, 31 percent said the relationships led to marriage. We asked Attorney Michael McAuliffe Miller, a member in Eckert Seamans Cherin & Mellott’s Harrisburg, Pennsylvania, office, to discuss these kinds of situations with us.

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His first comment addressed whether employers should just stay out of it. “For anyone entering into an employment relationship,” said Miller, “there are a few areas of privacy. But a sexual relationship between a boss and a subordinate is definitely not private. The relationship may be consensual at the start, but things can go wrong later.”

But what about the technical point, which observers were quick to point out, that Letterman was not the boss of the CBS employees with whom he got involved, because he works for his own company, Worldwide Pants? That doesn’t change anything, said Miller. Courts would see Worldwide Pants and CBS as joint employers of the women affected. “The biggest issue in such relationships is the disparity in power,” he stressed.

Forbidding all romantic relationships between employees isn’t necessary—and might well be impossible to enforce. But employers absolutely must strive to discourage relationships in which the lower-level employee might feel pressured to begin or continue a romance with a powerful company employee. As Boston Globe reporter Joseph Kahn observed, “the probability [is that] these liaisons will have negative professional consequences for one party or both.”

So let’s talk consequences. Someone tried to blackmail Letterman, and Phillips’s mistress allegedly harassed his wife and family. In both cases, and dozens of others, the high-profile, powerful person suffered a job loss at worst and a damaged reputation at the very least. But the impact on the lower-level partner, and the workplace as a whole, can be far greater. If the relationship ends, or the less-powerful person moves to end it, he or she will perceive any negative treatment at work—a poor evaluation, denial of promotion, disadvantageous transfer, or another step—as retaliation.

Another consequence can be that co-workers of the lower-level person involved in a relationship with a powerful person perceive favoritism—that, while the relationship lasts, the romantic partner gets less work, more privileges, and so on. Act now to prevent the damage, says Miller.

Avoid Liability for Workplace Romances

Like romances everywhere, some workplace romances go wrong. And, as Miller points out, if there’s a power disparity between the partners, things are very likely to go wrong. So what should employers do? Here’s more of his advice:

  • Put policies in place. Make it clear that (a) intimate relationships between a boss and a subordinate—including what Miller calls “a line-drawing exercise” from any employee to anyone in his or her reporting hierarchy—are prohibited, and (b) that high-level executives are barred from having a sexual relationship with any company employee. Says Miller, “Where a person has the ability to supervise or otherwise materially affect an employee’s terms and conditions of employment, they should not be involved in a relationship.”
  • But the real key to compliance is training, advises Miller. Policies aren’t always “entirely consistent with what is realistic in human relationships. So … repeated training on issues related to sexual harassment for all supervisors is a necessity to protect the company and to further an atmosphere of appropriate respect.”
  • “Don’t condone the behavior by your silence,” says Miller. If you learn that a boss is involved in an inappropriate relationship, go to him or her immediately. Don’t involve the lower-level partner. Instead, give the boss a choice between ending the relationship and losing his or her supervisory status.
  • If the boss flat out denies the relationship, all you can do is to carefully document your conversation with him or her.
  • It’s risky to rely on so-called ‘love contracts,’ specifying that employees involved in a relationship can’t sue the company. Employees can still go to court.
  • What are the risks? Miller recommends that training include explanations of four key Supreme Court rulings: The Ellerth and Faragher rulings in 1998 established that employers can be liable for sexual harassment if a supervisor was involved, even if no tangible negative employment action was taken against the subordinate. The Burlington Northern v. White 2006 decision extended the definition of an adverse employment step, while the Crawford v.[county governments] of Tennessee 2009 ruling broadened the class of people who can charge retaliation; both cases involved sexual harassment.


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