AGENTS' LEGAL ISSUES

SEX IN THE OFFICE

More than meets the eye

By Randall Kleinman, JD, CPCU, CLU

(Agents' Legal Issues provides a brief general overview of a complex area of law, and neither the author nor Rough Notes intends it to be taken as legal advice for any specific legal problem. For a specific legal problem, consult legal counsel that understands the law of insurance and insurance agencies, and provide all the details.)

When people used to talk about sex from a business and legal perspective, they usually were concerned about sexual harassment or discrimination. In the early days of sexual harassment suits, the press reported the very obvious instances of male bosses who forced female subordinates to put up with unwanted sexual advances in order to stay employed. Later, that kind of thing gave way in the press to somewhat more subtle instances of male bosses creating a "hostile environment" in the office by making sexual innuendoes about women workers. Today, however, the rules for sex and gender issues in the office continue to change, and many people may not be aware of the current issues of concern.

It generally is conceded that Clarence Thomas and Anita Hill, as a result of the Senate hearings a decade ago to confirm Thomas as a Supreme Court Justice, had a lot to do with focusing public attention on sexual issues in the workplace. The recent set of events involving President Clinton and Monica Lewinsky again have focused public attention on sexual issues, and in a way that points up the fact that some sexual issues involve a willing--rather than a reluctant--partner.

This month's "Agents' Legal Issues" column will look at some of the sex-related issues in the office and workplace that are much different from blatant sexual harassment.

Office romances

It probably doesn't surprise you that office romances exist. Sex is a strong drive, and when people congregate in any place, including an office, for eight hours a day, it is only natural that romance sometimes will occur. In today's workplace, people frequently are working longer and longer hours and, as a result, are finding themselves living a much greater percentage of every day at the office rather than at home.

Business travel, of course, adds to the potential problem since employees often take advantage of nice hotel rooms and restaurant dining to develop relationships with other employees who are on the trip--and away from their families.

There was a time long ago when office romances were considered common and almost to be expected; and in the old days bosses, of course, had a lot of leeway to make advances on women in the office, without much risk of reprisal. When the pendulum swung the other way, it swung all the way. For a time, around 10 years ago, it was considered totally unacceptable to have office romances in most companies, and it was likely to get a person fired. Of course, it was usually the subordinate who ended up getting fired or leaving voluntarily--and that almost always was a woman.

The pendulum has swung back somewhat, though. Many large companies now have policies that allow office romances within defined limits. Managers have come to realize that you can't outlaw office romance any more than you can outlaw competition. Recent statistics bear this up, showing that 80% of managers know of an office romance in their company; another study showed that one-third of romances start in a work setting.

So managers now try to "manage" the office romance situation, just as they manage anything else that comes up within their offices. Most managers don't want to lose good employees, especially during this tight job market, so they try to avoid firing them. On the other hand, though, it can be very risky for a boss and a subordinate to have a relationship. Often one of the partners is transferred to another department in the company so that the boss-subordinate relationship no longer exists during the relationship.

The couple, itself, first tries to keep the relationship a secret. That's not surprising, since it is a very personal matter and not something that a couple wants to spread all over the workplace. However, some couples report that other people found out anyway, or gossiped even if they didn't know for sure. So the consequences of not being open about the relationship have a distinct downside, too. The classic case of this was Mary Cunningham, who was a top executive with the Bendix Corporation 20 years ago, and the subject of intense rumors that she was romantically involved with the CEO. She denied the rumors, but they refused to stop and she ended up leaving the company. Eventually, the couple married but continued to deny that they had been romantically involved at the company.

The lawyer, of course, always will prefer to see a company operate without any office romances, simply because they always bring with them some risk of an eventual lawsuit. But the people who are engaging in them usually are bringing in revenue to the company now, and "now" often seems to be more important to management than eventual problems. So the new concept for handling office romances is to "manage" them by keeping them within bounds, with the hope that they do not turn into something down the road that costs the company in terms of legal defense expenses.

Before we leave the subject of office romances, it is worthwhile to note that the issue sometimes comes up regarding married partners. Some companies prohibit married people from working together. But laws in some places may prevent discrimination on the basis of "marital status." In one case, a teacher wanted to transfer to a school where her husband was the principal. Although school district rules forbade it, the court allowed the transfer. However, not all court decisions have agreed with that line of thinking. At least one argued that "marital status" discrimination only in general protects married people from being discriminated against, and does not apply to a specific person whose relationship with another employee might cause problems within the workplace.

Sexual orientation and "gender variation"

A number of current workplace issues involve sex from the perspective of a person's apparent sexual orientation. Gay rights is one of these issues. The country is gradually edging closer and closer to granting gay people legal rights; but for now there is a patchwork of laws on the books, some of which protect gays, others of which don't.

A 1998 case decided by the Supreme Court of the United States gives a very good idea of what the Supreme Court's thinking is these days. In this particular case, a man employed on an oil rig was put through a very tough time by his co-workers, who called him names implying that he was gay. It is of note that the Supreme Court's opinion never once says whether or not he was indeed gay, so the issue involved was the level of protection for a person being harassed on the job for his appearance or his demeanor (or simply for not acting as macho as the other fellows). When he went to the company human resources person for help, that person told him that he, too, had suffered harassment from the same men. So the man had no remedy within the company and finally sued, saying that he felt his life was at risk.

The Supreme Court was tremendously disturbed by the case. Their opinion was full of commentary to the effect that it was important to maintain a reasonable workplace and suggested that it was up to employers to do that job.

The result seemed to indicate that the Supreme Court is edging toward a workplace policy that simply insists on well-behaved employees who do their assigned jobs. It didn't formally approve of gay people in the workplace in so many words, but it seemed very upset that one employee would pick on another because of his/her sexual orientation--perceived or real.

"Gayness" isn't the only issue these days. A good number of cases now involve transsexuals and cross-dressers. The Americans With Disabilities Act specifically excludes these groups from its protection, but a number of local laws may protect them. In one highly publicized case a couple of years ago, a state government (male) employee who took to wearing dresses to work was allowed by the government to continue to do so, but only after a good deal of courtroom maneuvering.

Attire and hair styles also can become a sexual issue. For example, grooming and dress code cases have increased in frequency in the last 20 years. The plaintiffs in those cases usually allege that their employers have discriminated against them sexually because they wish to dress or wear hair in ways that may not be typical of their gender. Common types of grooming and dress code cases involve men who wish to wear long hair or ponytails on the job, saying that women are allowed to do so; men who don't want to follow corporate rules about wearing ties on the job; women who wish to dress differently--wearing "cornrows" or pants on the job when other women are not allowed to do so; men who refuse to shave their beards; or, in the reverse, women who refuse to wear "sexy" uniforms.

All of these types of cases are a far throw from the public's typical understanding of a sex-in-the-workplace case. While the public may think that sex-in-the-workplace cases usually involve a boss forcing himself sexually upon a female employee, these other types of cases are actually far more common and involve many more people.

Bona-fide sexual qualifications

Sometimes an employer has to use an employee of one particular gender for bona-fide business reasons. Such cases do come up in the courts. One common argument used to be that an employer's customers were not receptive to women salespeople or service representatives, especially in traditionally male-dominated industries. That argument has rarely succeeded, however. A related argument has been made that women in a given industry have higher job turnover, thus costing the employer more money to train new employees. That argument hasn't been successful, either.

In certain instances, however, the courts have allowed gender-specifics to be a factor in hiring. In one court case, the court upheld the right of a police department to insist on using a female officer to deal with female rape victims. But that kind of exception is quite limited. For example, a New York court refused to let an all-male prison hire only men as cooks.

In another instance, an employer sometimes will raise "sexiness" as an argument: "We want to attract male customers by using scantily-clad female employees." Historically, that argument, also, has had little success. The answer in most cases has been that "women" should be looked at on an individual-by-individual basis, not as a group.

Conclusion

Where is this all leading us? It's leading to a 21st century workplace where a person's private sexual activities and preferences, and his/her gender appearance are gradually becoming irrelevant, just as long as the person does his/her job competently. (The fact that a customer might complain is generally not going to be enough to make a difference.)

We are not to the point yet where that simple rule is the law. We currently have a patchwork of laws, and courts from different parts of the country quite often disagree with each other. And, of course, politics plays a role in this area of the law. Events like Clarence Thomas/Anita Hill and Bill Clinton/Monica Lewinsky have a powerful effect on the public's perception of how the workplace should be regulated. That perception usually ends up affecting decisions about what laws should be enacted. But if you want a rule of thumb for the 21st century, worry about how the person next to you does his/her job--and not what type of sex life the person may have. *

The author

Randall Kleinman, JD, CPCU, CLU, represented many insurance agencies during his twenty-year career as a lawyer emphasizing the insurance industry. He has also served as president of one of the country's largest CPCU chapters. Currently he is editor of Insurance Magic, which seeks to spot trends and opportunities in the insurance industry.