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It goes without saying that sexual harassment is disruptive to the workplace and costly to employers. Sexual harassment can be difficult enough to deal with in the typical scenario, where one employee makes sexual advances or repeated sexual remarks to another employee who is offended by such conduct. Employers seem to have an even more difficult time contending with cases of sexual harassment that result from an office romance gone bad. As one court recently found, such situations can be just as costly to employers as the case of a supervisor demanding sexual favors from an unwilling subordinate.

In March, the federal appellate court which hears appeals from federal courts in Texas, Louisiana and Mississippi dealt with a case involving a failed office romance, Green v. Administrators of the Tulane Educational Fund. Ms. Green was an office manager for Dr. Richardson. Dr. Richardson pursued Ms. Green romantically for many years, and they ultimately entered into a consensual sexual relationship which lasted about a year. The relationship apparently ended because Dr. Richardson began a relationship with another hospital employee.

Ms. Green contended that Dr. Richardson began to harass her after the end of their relationship. She argued that his new girlfriend wanted her fired, and claimed that Dr. Richardson changed office procedures, restructured her job duties, reprimanded her and demoted her from office manager to administrative assistant in an effort to make the workplace intolerable. Ms. Green's arguments to the jury prevailed at trial, and she was awarded $300,000 in compensatory damages (the maximum allowed under Title VII), almost $130,000 in back pay and front pay, and more than $330,000 in attorneys' fees and costs.

On appeal, Tulane argued that, while Ms. Green may have been the subject of harassment, it was not “sexual harassment' as defined by Title VII. Rather, the harassment was merely the result of "personal animosity" between and Dr. Richardson and her, which is not actionable under Title VII. The Court disagreed, finding that Ms. Green was subjected to disadvantageous terms or conditions of employment to which members of the opposite sex were not.

Tulane also argued that it was entitled to assert the Ellerth/Faragher affirmative defense, which states that if an employer exercises reasonable care to prevent and correct sexually harassing behavior, and the employee fails to take advantage of the corrective opportunities provided by the employer, the employee's suit is barred. Again, the court disagreed with Tulane. The court observed that in the normal hostile work environment case, the Ellerth/Faragher defense can be asserted by the defendant. However, this case did not involve merely a hostile working environment where Ms. Green was simply subjected to unpleasant or harassing treatment at work; it also included a demotion with a loss of job responsibilities. As a result, the harassment involved an "ultimate employment decision" which precluded Tulane from asserting its Ellerth-Faragher defense.

The appellate court affirmed the decision of the trial court in all respects. In doing so, the court recognized that just because a workplace romance begins in a consensual manner, that does not mean that it cannot produce an environment of unlawful harassment.

While workplace romances can create problems and fail more often than they succeed, they do not have to end with a sexual harassment suit. With the right policies in place and the proper handling of such situations, employers can ensure that the employment relationship with employees is not disturbed by their office romances.

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