Court raises the bar of boss's liability for workplace affairs.
By ASHER MEIRasher meir 88(photo credit: )
Last week, the National Labor Court made a novel and controversial ruling regarding sexual harassment in the workplace. It ruled that relations between a supervisor and employee can be considered harassment even when they are initiated by the employee. A female engineer was awarded monetary damages for a workplace affair she consented to and even initiated. The precedent bears close examination, starting with a bit of background.
Sexual harassment in the workplace is at least as old as Joseph and Potiphar's wife. And the usual outcome is the same as it was 4,000 years ago - the employee is the one who ends up in the dungeon. However, in recent years progress has been made in protecting employees from this kind of treatment. Forcible relations have been a crime for millennia - rape in the case of full relations, assault and battery in the case of unwanted advances.
But workplace harassment doesn't always fit these categories. Sometimes the acts fall short of those deemed criminal, such as repeated unwanted requests for contact that could be easily avoided outside the workplace. Sometimes there is consent from a criminal law point of view, but extensive pressure or duress. And sometimes the activities alleged may be criminal, but the degree of proof is not up to the "beyond a reasonable doubt" standard needed for a criminal conviction.
This problem eventually gave rise to a distinct legal category known as workplace sexual harassment. In Israel, the relevant law was passed in 1988. To the best of my knowledge, in most jurisdictions sexual harassment is a tort, meaning that a harassed employee (usually but not invariably a women being harassed by a man or men) can sue the harassing coworker or, in many cases, the employing firm for a monetary award. Israel's law is unusually strict in making sexual harassment a crime as well.
Another objectionable workplace behavior as old as history is where a worker initiates an affair, usually to obtain advantageous treatment in the workplace. Traditionally, it has been considered that the victims in this case are other coworkers, who are unfairly discriminated against in promotions because they are not willing to compromise their morals, and the firm, which finds productivity plummeting because the boss is neglecting his duties.
Firms have sought to solve this problem by making strict rules forbidding employer/employee affairs, or at least requiring disclosure. To the extent a legal solution has been sought, the temptress is typically viewed as the wrongdoer, while the coworkers consider themselves the victims and have sued on occasion for workplace discrimination.
Mixing these two categories is innovative, to say the least. So no one was surprised when a lower court judge dismissed the worker's charge of rape after evidence was presented showing that she herself had initiated the relationship.
However, the National Labor Court reversed this decision and upheld the employee's demand for payment. Three factors played a critical role in the decision:
• Israeli law, in particular, places a heavier burden of proof on direct superiors than on other coworkers. An aggrieved coworker has to prove that advances were unwelcome, but if the accused is a boss he has to prove that they weren't.
• Normally, when the underling initiated the connection would constitute adequate proof that the contact was welcome, but the court made an exception here because it decided this was not an office romance. There was evidently no powerful emotional connection between the two; the connection was exclusively physical and therefore, according to the court's reasoning, exploitative.
• The superior failed to report the affair, even though his firm required reporting romantic relations between employees. The failure to disclose in this case was viewed as a kind of admission that this was an exploitative relationship and not a romantic one.
I kind of see what the court was getting at, but ultimately I find the decision extraordinary and inexplicable. I understand that the law puts the burden of proof on the boss, but I can't see what greater proof the boss could have brought. The court acknowledged that there was no pressure or hostile environment behind the consent. Even if a person has to prove his innocence in court (a problematic proposition in the first place, but acceptable in tort law), he should at least be empowered to do so. What greater evidence of consent could be demanded beyond the fact that the victim initiated the relationship which was then construed as a tort?
The decision said: "It is our obligation to deepen and advance a desirable and appropriate social norm, which is still not sufficiently internalized, according to which a relationship between a superior and a subordinate, based solely on incidental sexual relations in the workplace, stinks of abuse of power, and justifies the claim of sexual harassment."
In my opinion, the obligation of a court is to interpret and apply the law - not to deepen and advance the social norms the judges favor. We have a legislature for that purpose, and I do encourage the judges to vote for Knesset members who will establish strict employer liability for workplace affairs, or to run for the Knesset themselves on this platform.
The 1988 Sexual Harassment Law does not establish strict liability for this tort, and I don't see how the court can unilaterally invent one. That the relationship was obviously exploitative begs the question of who was exploiting whom, and the circumstances of the initiation of the relationship should certainly affect our judgment on this question.
Workplace affairs between supervisor and subordinate have a definite tendency to be disruptive and exploitative. There is every reason for employers to forbid or regulate them. Perhaps there is a place for the legislature to penalize them. But given that the legislature so far only penalized harassment, I think application of the law when relations were initiated by the subordinate is beyond the scope even of Israel's unusually inclusive statute.
ethics-at-work@besr.org
Asher Meir is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of Technology.
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