Boy sexts girl. Girl sexts boy. Nope, no sexual harassment here.

It’s the age old tale.

Like a couple of sexting rabbits, a female employee and her male supervisor carrying on like, well, a pair of sexting rabbits. And, then, after the defendant-company fires the plaintiff-employee, she sues and claims that she was subjected to quid pro quo sexual harassment.

So, could it have gotten to the point that unwelcomed sexting became a required term or condition of the plaintiff’s employment?

Is the behavior unwelcome?

Ummm….no. Indeed, there were a few clues as I read the court’s opinion in Dye v. BNSF Railway Company.

Firstwere the reams of spreadsheets attached to the defendant’s motion for summary judgment, depicting what the court described as “extensive sexually-explicit text messages, many of a highly graphic nature” exchanged between the plaintiff and her supervisor.

Second, there is the law. That is, a plaintiff alleging quid pro quo sexual harassment must show that he/she was subjected to unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Lots of dirty, nasty, prurient text messages from a supervisor can check this box. But, when the employee willingly reciprocates — and did I forget to mention that they slept together twice — it’s no longer unwelcome.

Look dudes, it can be very dangerous to be left defending a sexual harassment lawsuit, arguing that a plaintiff — male or female — welcomed the sexual advances of a supervisor. But, sometimes, when the evidence reads like 50 Shades of Grey, you play the hand you’re dealt.

So, what can a company do to proactively address workplace “romances”?

One way is to prohibit supervisors from engaging in dating, romantic, or sexual relationships with direct reports. Not only can those relationships end badly, but other direct reports can perceive themselves to be disadvantaged.

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