Can Casual Sex Between Consenting Adults Become Sexual Harassment?

Court ruling on sexual harassment causes quite a stir - and disagreement

'Managers who have affairs within the company will be considered criminals'

Last week's precedent setting ruling by the National Labor Court, stating that casual sex between an employer and employee is considered sexual harassment, was certainly the hot topic at most workplaces - and has raised quite a bit of disagreement among experts on labor relations.

The three national labor tribunal judges reversed a decision of the Haifa Labor Court in a suit filed by a 43-year-old software engineer against her employer.

She had had a six-month affair with one of her bosses, and was suing the company for compensation for sexual harassment after the affair ended. The regional tribunal ruled against her, but the higher court awarded her NIS 35,000 in compensation. Immediately after learning of the ruling, several high-tech companies notified their senior management of the matter. Off the record, many executives were quite worried about the implications of the decision. The ruling will "turn every company supervisor who has an affair in the workplace into a potential criminal," said one executive.

Attorney Nahum Feinberg, an expert in labor law and the head of one of Israel's largest law firms, expressed doubts about the decision. "The judges of the National [Labor] Court went to the limit, and even beyond it," he said. "A manger who has sexual relations with a subordinate has not necessarily committed sexual harassment, at least not in the case before us, where the employee came on to him."

The problem with the ruling is that the judges introduced moral issues into their decision, said Feinberg. "They are adults. True, they committed a serious disciplinary offense, certainly the supervisor," he said. While the workers may have violated their employer's trust, that is a long way from sexual harassment requiring compensation. He added that if the worker had not come on to her boss, he would have been able to live with the ruling. In fact, because she initiated the affair, the case could have been viewed as her giving a sexual bribe in return for preferred treatment, such as a promotion, said Feinberg.

"There were a lot of bad things here, but not sexual harassment," said Feinberg. However, he says the ruling is the National Labor Court's attempt to define it policy on the matter. Attorney Talia Livni, the president of Na'amat Israel, a woman's organization, views the matter rather differently. She praised the ruling, which she says clearly reflects the spirit of the law against sexual harassment.

"The importance of the law is that it serves as a warning for senior supervisors," said Livni. These senior executives can expect a harassment complaint if they abuse their position to have an intimate relationship with an employee, even if the employee is willing. Livni says further that the labor court intended for its ruling to apply not only to workplaces, but to other hierarchical organizations and frameworks such as universities.

"A lecturer could pursue sexual relations with a student. It is problematic for the student to refuse, so she agrees to it. Such a case is considered sexual harassment on the part of the lecturer," explained Livni. She said that managers and supervisors now must choose whether to have sexual relations only with those employees who are not subordinates.

They must understand that they must avoid such relations, even if they are entered into willingly, even at the initiative of the employee. Livni called on management to separate the workers in such cases.

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