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1. FEATURE STORY:
FAVORITISM FALLING OUT OF COURT FAVOR

Just when you thought you had all the leaks plugged in your anti-harassment boat, along comes a ruling from California (where else?) that creates what one lawyer called a "sea change" in the circumstances that can puncture holes in your defenses.

The gist of the ruling: Favoritism has a long history of not being deemed an illegal workplace act. But under certain circumstances, paramour favoritism may amount to sexual discrimination or harassment. And since over half of the employees in a national workforce survey have admitted to having office romances, you definitely want to pay attention to what this court said.

Note: Of course, if you had been paying close attention to what the EEOC says, you could have seen this coming. That's because many states take their cues from what the EEOC has to say.

Here's what the EEOC has said: "If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed their favors."

Quick details: A manager in California was having obvious affairs with three co-workers.  Both he and his paramours made things miserable for several other subordinates.  The negative treatment ranged from constant verbal abuse to loss of promotions, to actual demotions to reduced privileges.  Two of the targets sued under California's Fair Employment and Housing Act.

A district court rejected their charges, but the state supreme court set that "sea change" back in motion.  It ruled:

• A worker can suffer harassment even if his/her boss never asked for sexual favors or made inappropriate advances.  And an employee does not have to be the direct target to be a harassment victim.

• Based on that EEOC policy statement, an atmosphere that is sufficiently demeaning to women may be actionable by both men and women.

• Employees are not required to elaborate to their employer on the legal theory underlying the complaints they are making, nor do they have to recite the specific words "sexual discrimination" or "sexual harassment," to be protected.  (Miller v. DOC, CA Sup. Ct., No. S114097, 2005)

Here's how you should rule when it comes to paramour protection.

• Sexual favoritism claims receive the same amount of attention and investigation as any other "harassment" claims even if they aren't labeled as harassment.  The words "sexual harassment" do not have to be uttered for you to be put on notice that an investigation is needed.

• Besides enforcing non-fraternization and anti-nepotism policies, you should set in place a mechanism to ensure that even consensual relationships don't create a hostile environment for others.

• Don't overstep privacy boundaries.  Some states, like California and New York, prohibit employers from taking adverse action against employees engaged in lawful off-duty conduct.  That could include a consensual sexual relationship.

• Focus on workplace facts.  It's not the affair or romantic relationship that should be the basis for your action.  It's the effect it has on the workplace.  Sexual favoritism that lowers morale, decreases productivity, etc., is fair game for your discipline.
  
  
• Keep your ear to the ground for "indirect" harassment.  Squabbling between co-workers, bragging about receiving plum assignments, or in-your-face confrontations between equals may indicate a relationship that needs investigating.

MATERNITY LEAVE: FERTILE GROUND FOR A LAWSUIT

Providing a pregnant employee with maternity leave isn't enough to stave off a legal claim if you give her a...View the full story on our website.

FREE REPORT OF THE MONTH:

Check out the new Free Report, "Keeping An Eye On Employee E-mail," which gives you all the e-information you need to keep your employees' e-mails both legal and professional.  You get sample language to brush-up or create a stand-alone electronic communications policy; tools you can pass on to your employees for writing and sending professional e-mails; and guidelines for retaining e-mailed records.

Kick back, relax, and take a few minutes to check out the HR Soapbox, "Business Helps The Gulf Coast Bounce Back After Katrina," in which an editor talks about how business has responded to those affected by Katrina.