Workplace Romance, Retaliation and #MeToo - A Valentine’s Day Bouquet for EPLI
Office romance is about as embedded in business culture as the Superbowl pool. A recent study found that 57% of employees have had an office romance - and 66% of these would have another.1
But when 47% of employees know of co-workers involved in intra-office affairs, it's no surprise that resentment may fester when those employees perceive that they are being treated less favorably than their romantically-engaged colleagues.
That is what happened in one claim, with a critical distinction about the co-workers: the employee believed that his female subordinate was having an affair with his male boss. That put him right in the middle of the reporting structure. The employee had observed various signs of intimacy between his boss and subordinate, and office gossip confirmed his suspicions. In fact the boss made it clear that he would protect the subordinate, no matter how the employee viewed the subordinate’s work. When a new position opened up, the employee passed over his subordinate for promotion in favor of a more highly rated candidate. Subsequently, the employee received a low performance evaluation from his boss. The employee then alerted HR to the perceived relationship. One month later, the employee was placed on leave and fired. In turn, he sued for discrimination and retaliation.
Here’s the twist: there was no proof that the male boss and female subordinate were actually having an affair. The employer argued that without the existence of a relationship, there was no basis for retaliation.
The court disagreed and held that the claimant could pursue the retaliation claim whether or not there was any relationship or paramour favoritism.2 What mattered was that the employee had a “reasonable, good faith belief” of wrongful discrimination when making his complaint. The retaliation claim could survive “regardless of whether a relationship actually existed.”
How is this case relevant to EPLI and recent claim trends?
Retaliation is all about how an employer reacts to an employee complaint of harassment or discrimination. If the employer responds similarly to the situation described or takes other adverse action against the complaining employee, that employee has a whole new cause of action - even if the underlying discrimination or harassment charge has no merit. In essence, the employer creates liability where none may have existed.
Retaliation has become the #1 charge filed with the EEOC and now accounts for 49% of all charges made by employees - more than sex or race discrimination.3
That leads us to think about the reports of sexual harassment spread across the headlines of late, the #MeToo movement, and this statistic from the EEOC:
• 75% of workplace harassment victims experienced retaliation when they spoke up.4
How are employers across the U.S. reacting when workers report an incident of harassment? Are they conducting a proper investigation, or are they taking retaliatory action against the complainant by cutting pay, denying promotions or terminating an employee as in the case we described? You don’t need clear proof of sexual harassment to have a clear case of retaliation.
The flames of workplace romance won’t be put out by a few statistics, claims or handbook policies, at least not fully. Paramour favoritism - real and perceived - will continue to spark resentment. And, as we learned from a lawsuit, exposure is determined as much by how an employer deals with workplace romance and perceived favoritism as the behavior itself.
Just another day at the office - and another reason to have an Employment Practices Liability insurance policy.