LATE NIGHT SEXUAL HARASSMENT?????

We’ve all heard about David Letterman’s “confession” on his show last week.  Admit it, you either saw it live or you went on You Tube and checked the video out.  So, Mr. Letterman had an office romance with a woman who worked for him.  Big deal you say, lots of people do that.  True.  But it is not often that we lawyers get to use such a big celebrity as an object lesson.  Besides, there are a bunch of legal issues associated with this thing that must be giving bloggers like me heart palpitations.

 The alleged extortion angle is interesting, but it is a bit outside of my area of expertise.  I don’t know what happened with Mr. Letterman and I sure don’t know all the facts, but I do want to talk about office romances between supervisors and subordinates, so we are going to focus on the office romance side of this thing.  What if a supervisor has a sexual relationship with a subordinate?  Is it sexual harassment?

 Well, that depends. 

 The federal definition of sexual harassment is:

 Sec. 1604.11  Sexual harassment.

“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

Now we don’t have to get too far into that definition to pause.  It says “Unwelcome” sexual advances blah, blah, blah.  A consensual relationship between two adults isn’t “unwelcome” is it?   Generally, no.  But here is where the whole thing gets complicated by the supervisor subordinate thing.  The EEOC says:

 “In Vinson, the Supreme Court made clear that voluntary submission to sexual conduct will not necessarily defeat a claim of sexual harassment. The correct inquiry “is whether [the employee] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.” 106 S. Ct. at 2406 (emphasis added). See also Commission Decision No. 84-1 (“acquiescence in sexual conduct at the workplace may not mean that the conduct is welcome to the individual”).”

 See http://www.eeoc.gov/policy/docs/currentissues.html

You see, whenever a supervisor and a subordinate have a relationship, it is possible for the subordinate to feel pressured, to feel like he or she needs to comply with the bosses “requests” or bad things will happen.  If that is the case, then the conduct is unwelcome. 

 The moral of this little story is what then?  Let me tell you (I read this in a handbook once):  Think before you enter into that office romance.  It probably seems like a really good idea right now.  It probably won’t seem like such a good idea when it ends or when someone you work with finds out.  And if you are a supervisor, don’t date your subordinates.  It’s a bad idea, don’t do it.