When it comes to sexual harassment and sleeping with one’s boss, the short answer is: Yes, it is still sexual harassment. The key portions of the law are whether or not the sexual advances are “welcome” or whether one’s continued employment, chance for advancement, or other such items are contingent upon one “putting out” or not.
The concept of whether or not sexual advances are “welcome” is complicated. A woman put into the position of choosing losing her job or sleeping with her boss may choose the sex. That kind of “Lady or the Tiger” choice is considered forced even if she consents to the sex because her job hangs in the balance. This portion of the applicable law is called “quid pro quo.”
Also, even if there is no, “Do it, or you’re fired,” threat expressed, many courts have reasonably concluded that such a threat is implicit in any superior-subordinate sexual relationship, which means that the quid pro quo concept applies. Sometimes, the courts decide otherwise, which is where the “welcome” concept comes into play. Suppose a boss and a subordinate have a consensual sexual relationship. The advances of each toward the other are considered “welcomed” if the pursued party wanted the pursuer to do the pursuing. It doesn’t matter what gender or sexual orientation each party is. The law applies equally to all people per Title VII of the Civil Rights Act of 1964.
The same concepts apply equally if the harassment is given, essentially, as a bribe instead of a threat. “Go on a date with me, and I’ll ignore that written warning,” is an example of this. The threat is still implicit in the bribe, however. Other forms of this kind of quid pro quo include, “I’ll promote you if you sleep with me,” “I’ll give you a raise if you sleep with me,” or similar.
Yet another variation on the theme is the “combination play.” That might be something like, “If you don’t sleep with me, you’ll never get promoted, but if you do, I’ll buy you your vice president’s desk plaque myself.” In any quid pro quo situation, the pursued person in any possible sexual relationship either gains something or has something detrimental not happen in exchange for the sexual favors.
The other kind of sexual harassment that is common in the workplace is “hostile work environment.” Usually, this encompasses off-color jokes, derogatory or objectifying comments, excessive staring, and the like. Often, however, both forms of sexual harassment cross over into each other’s territory, and the laws regarding such overlap can be complex. Securing the advice of an attorney whose focus is sexual harassment and employment law could mean the difference between a successful case and an unsuccessful one.
One gray area that is rare is the quid pro quo situation in reverse where a subordinate offers to perform sexual favors for some benefit. The big difference here is that the person in authority does not initiate the pursuit. Depending on the situation, this might fall under the quid pro quo statutes, the hostile work environment statutes, or both. Because bosses are the ones who are usually held accountable for harassment, bosses of any gender might be reluctant to report such an offer from a subordinate.
It is crucial to remember that anyone, no matter the rank, has a right to a harassment-free workplace. If you have experienced sexual harassment of any kind, or you just suspect that you have, taking advantage of of free initial consultation is a good first step to protecting your rights and, if applicable, receiving justice. Give us a call today or drop by the office to set up an appointment.