A new form of unlawful discrimination is about to go into the rule books, according to a notice printed in the Nov. 10 Federal Register (page 74676). It might be called sexual nonharassment.
The final, interpretive "Guidelines on Discrimination Because of Sex," as adopted by the Equal Employment Opportunity Commission, describe the situations where EEOC will investigate allegations of sexual harassment and decide on employer responsibility.
The EEOC sought public comment for 60 days, during which time, according to the notice, "several commentators raised the question of whether a third party who was denied an employment benefit would have a charge cognizable under [the law] where the benefit was received by a person who was granting sexual favors to their mutual supervisor."
In other words, if employe X is rising to the top because of a sexual liaison with boss Y, does employe Z, the third party, have a right to complain?
"Several commentators," according to an EEOC official, turned out to be letters from "five to seven" individuals.
The EEOC, the notice reports, did not consider the situation as described by these five to seven commentators "to be an issue of sexual harassment in the strict sense. . . ." But the commissioners did recognize it as a related issue and therefore added the following subsection to the guidelines:
"Other related practices: Where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sexual discrimination against other persons who were qualified for but denied that employment opportunity or benefit."