Third party discrimination claims have helped further the rise in retaliation and develop the legal theory of "Sex Plus." Regarding the latter, courts have ruled that when a romance enters the office, an employee can prove discrimination based on gender "plus" another particular characteristic.
If a manager's failed office romance forces him or her to focus more heavily on the work, his increasing demands on, for example, a pregnant underling could give her the grounds for a lawsuit. Under Sex Plus, the pregnant woman could allege that the office romance had provided an underlying basis for a separate act of discrimination. "When the courts find in favor of the client, then interpretation of the law gets expanded," says Dr. John A. Pearce II, an endowed chairman at Villanova School of Business. "We're seeing the emergence of more and more third party cases.
According to the EEOC, money paid out by companies in sexual harassment lawsuits has averaged only $47.8 million over the last 12 years. That low figure, many believe, is indicative of employers' preference to settle out of court rather than face an ugly lawsuit. However, thanks to the rise of third party discrimination claims, the EEOC recovered $376 million on behalf of discrimination victims in 2009.
Fearing such settlements amid a recession, a growing number of companies are fighting back. One popular method is forcing employees to sit through Web-based compliance training sessions that underscore the perils of a little affection in the copy room. By consolidating sensitivity seminars and policy education into a mandatory online tutorial, companies can put the onus of awareness on the employee.
Another strategy is forcing employees to sign "love contracts," the office version of a prenup, stating their mutual affection will not interfere with the workplace. If such documentation effectively takes the fun out of an office romance, well, that's the point.
Most companies, however, haven't yet decided what to do. According to a survey of more than 600 companies by the Society for Human Resource Management (SHRM), 13 percent reported having a written policy addressing intra-office affairs; 14 percent claimed they had an unwritten one.
Source: Bloomberg BusinessWeek, September 20, 2010