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Jilted Party Harassment: Liability Issues With Consensual Relationships In Your Workplace

By Jack McCalmon, The McCalmon Group, Inc.

Another sexual harassment scandal has rocked Fox. Host Charles Payne, of Making Money, was suspended based on a charge of sexual harassment made by TV personality Scottie Nell Hughes, a former guest analyst for Fox Business Network.

Hughes accuses Payne of sexual harassment and Fox of retaliation. Hughes states she had a relationship with Payne because she believed it would lead to a paid position at the network. She claims that when the affair was discovered, her appearances ended, and Payne harassed her. Stephen Battaglio "Fox suspends business news host Charles Payne amid sexual harassment allegations,"http://www.latimes.com/business/hollywood/la-fi-ct-charles-payne-fox-business-20170706-story.html (Jul. 11, 2017).

According to sources, the affair between Payne and Hughes was well-known at Fox, and that Hughes joined Payne in Las Vegas where he hosted his show for a short time in 2015. During that trip, reports state the two stayed in the same hotel room and went missing "for hours". The end of the relationship appears to have occurred when, at Payne's birthday party at his house, Payne's wife saw how "flirty" Payne and Hughes were with each other. Payne's wife went to Payne's boss, Bill Shine, who is accused of barring Hughes from the network after the party. Hughes then claimed Payne pressured her to stay in the relationship after she was barred. "Racy Emails! Charles Payne's Affair With Alleged Sexual Harassment Victim, Exposed,"http://radaronline.com/celebrity-news/charles-payne-sexual-harassment-victim-emails/ (Jul. 10, 2017).

Bill Shine resigned as co-president of Fox News. Claims are that Shine permitted a hostile working environment at Fox. Michael Calderone, Michael McLaughlin, "Bill Shine Is Out As Fox News Co-President, "http://www.huffingtonpost.com/entry/fox-news-bill-shine-out_us_5903c3bfe4b02655f83d965d (May 01, 2017).

Payne does not deny the affair and stated he ended it. He apologized to his wife and children and vows to fight the claims. Yashir Ali "Conservative Analyst Scottie Nell Hughes Accuses Fox Business Host of Sexual Harassment," https://www.yahoo.com/news/conservative-commentator-scottie-nell-hughes-013829317.html (Jul. 06, 2017).

Sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Undoubtedly, because Payne is not denying the affair, his defense will be that the affair was consensual and welcomed. If the steamy emails provided to the press from Hughes to Payne are true, then Hughes will have a difficult time claiming the affair was not welcomed, at least during the time she believed she would be hired on at Fox.

Hughes' argument will be that it was consensual, but never welcomed because she wanted a job, and that when she was denied the opportunity, Payne's efforts to continue the relationship was harassment. 

I call allegations like these "jilted party sexual harassment," and this is why I don't like employers looking the other way when sexual or romantic relationships occur in the workplace.

Hughes feels Fox jilted her because she moved to New York; had a sexual relationship with Payne; didn't get the job at Fox because of that relationship; and had to endure Payne wanting to continue the relationship after it ended, if the reports are true.

Payne feels jilted because Hughes would not continue the relationship he believed was welcomed because of her feeling toward him, and not because she wanted a job, if the reports are true.

Many argue that employers should not hinder romantic or sexual relationships between employees. They point to survey after survey that shows employees are already having relationships with their coworkers, whether or not employers want them to, and that younger employees, especially Millennials, don't see the harm of coworker dating. A popular conclusion is: why fight what is natural and if you do, then you will lose out on Millennial talent.

As an example, one survey shows that 51 percent of employees claim to have had a relationship with a coworker, and that 64 percent state they would do it again. Karsten Strauss "Office Romance: What We do And How We Feel About It," https://www.forbes.com/sites/karstenstrauss/2016/02/11/office-romance-what-we-do-and-how-we-feel-about-it/#6759a35869cf (Feb. 11, 2016).

I don't disagree that employees will develop relationships with their coworkers. I just don't believe employers should condone it. Instead, employers should address such relationships quickly and effectively, if they want to limit their liability.

First, many employees do not have relationships with their coworkers and never would.

Next, very few applicants, if any, accept a position with the goal of establishing a relationship with a coworker they have never met.

Think of it this way…love may happen on the job, of course. Injuries may happen too, but the vast majority of employees don't take a job to collect disability or workers' compensation, and employers don't look the other way when employees engage in unsafe, careless behavior.

Moreover, consensual relationships that are unwelcome can still be considered sexual harassment. Whether a relationship is welcomed or not, it is never obvious even to the parties, and can change at any time (or be claimed to be unwelcome at any time). For instance, Hughes appeared to welcome the relationship, so long as the opportunity of a future paid position existed. If the reports are true, she then did not welcome the relationship when the opportunity of a paid position evaporated.

That begs the question: would Hughes have kept the relationship going if she had received a paid position? Only Hughes knows the answer.

I would also suggest that the vast majority of employees think employers should treat all employees equally (as the law does) whether they are in a relationship or not. This is especially true for Millennials who have a strong belief in fairness.

With those certainties, most would agree that people in a relationship will show favor to, or be perceived to favor, their partner over other workplace participants, especially if the relationship is with management. Hughes, in the Fox matter cited above, was betting on it, wanting a paid position with Fox. Most employees would think that favoritism based on having a sexual or romantic relationship with the boss is not fair, and that hurts morale and undermines management. 

The Charles Payne affair helps make my last point against promoting relationships at work…including consensual relationships. The divorce rate in this country is between 40 to 50 percent according to the American Psychological Association (http://www.apa.org/topics/divorce/) so if two people are willing to commit to marriage and then break it off, you can assume that workplace romances break off at a higher rate. This means that, in most cases, one party to the relationship, if not both, may feel jilted.

The Payne and Hughes affair is a perfect example of how ugly office romances can become, especially if one of the parties feel jilted, and why employers should not condone or look the other way when sexual or romantic relationships occur.

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