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When is it a workplace romance, and when is it sexual harassment?

A common defense to workplace sexual harassment claims is consent. In other words, an accused supervisor may say that the plaintiff welcomed his or her sexual comments or advances, or that the two parties engaged in a sexual relationship. Whether the defendant’s conduct was welcome to the plaintiff or not may become a key point of any sexual harassment lawsuit.

Everybody in California has the right not to be subjected to quid pro quo arrangements involving sex, or a toxic environment of inappropriate comments, touching and so forth. On the other hand, it is not uncommon for people to meet at work and fall in love, even when one person is the other person’s supervisor or boss. How does the law distinguish between sexual harassment and a workplace affair that went bad without any laws being broken?

A recent ruling from a federal judge in California may shed some light. The plaintiff in the case worked at Camp Pendleton, a Marine Corps base in San Diego County. She and the defendant, her supervisor, dated “on-again/off-again,” both before she worked at Pendleton and during her employment there.

According to the plaintiff, she only consented to the relationship due to pressure from the defendant, and because she was afraid of losing her job. She said she suffered retaliation for fighting against sexual harassment at her job, and for reporting being harassed to the U.S. Equal Employment Opportunity Commission. She also said that co-workers gossiped and harassed her because of her perceived position of privilege.

The court dismissed the claim, noting that a sexual harassment claim must show a “tangible adverse employment action.” The plaintiff failed to present evidence such action against her, the judge wrote. She noted that “this case demonstrates the perils of an office romance.”

Though this case went against the plaintiff, it is possible to show that a so-called “consensual” workplace affair involved duress or threats against your career.

Source: Alatorre v. Mabus, 13-CV-1702 BAS DHB, 2015 WL 2180480, at *1 (S.D. Cal. May 8, 2015)

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