Despite employers’ best efforts to avoid sexual relationships occurring between supervisors and subordinates, human nature can win out.  When a supervisor’s overtures and acts are unwelcome, the subordinate may of course assert claims of sexual harassment.  Not all subordinates, however, find these invitations unwelcome.  Occasionally these relationships are consensual and the subordinate has no complaints.

The subordinate’s co-workers may nonetheless have a different view of the situation.  These co-workers may find that the supervisor is treating the subordinate with unfair favoritism.  Perhaps the subordinate is receiving undeserved assignments and compensation or the handbook rules on attendance and other workplace standards may not seem to apply to the subordinate.  The co-workers may find the supervisor’s conduct discriminatory and complain.  In turn, the supervisor may be upset by the co-workers’ claims and treat the co-workers with indifference and further disadvantage.

These were the allegations considered by the Minnesota federal district court in Dau v. Arthur J. Gallagher & Co, et al., Civil No. 13-1560 (D. Minn. Sept. 3, 2013).  The subordinate’s co-workers brought claims of sexual harassment and retaliation against the employer.  The court dismissed these claims holding that isolated instances of favoritism toward a paramour does not violate Title VII of the Civil Rights Act or the Minnesota Human Rights Act.  It held that only claims of widespread sexual favoritism could proceed.  The court also dismissed the co-workers’ retaliation claims, holding that the co-workers could not have had a reasonable belief that the conduct they alleged violated applicable law.  The court stated that the co-workers could not rely on “his or her own reasoning and sense of what is discriminatory.”

Takeaway:  While an employer may avoid liability regarding a supervisor’s isolated instances of favoritism toward a subordinate with whom he or she is having a consensual relationship, such favoritism should not be encouraged or condoned.  Doing so may result in workplace dysfunction and operational shortcomings.  If confronted with such a circumstance, an employer may want to consult with their legal counsel.