Canadiandude2 wrote: ↑Wed Sep 13, 2023 3:34 am
toon wrote: ↑Tue Sep 12, 2023 10:05 pm
It certainly matters in a legal sense.
If there is good chance that the person with power could threaten or advance the subordinate target’s career, or endanger their life, etc. then no, not necessarily.
Perhaps American Law has some catching up to do, but the problem here is that greater the power of the accused over the target, the more pressure they may feel to ‘just let it happen’ so as to not have their life screwed up even more than it already is with your boss, professor, military senior, etc. propositioning you.
In other contexts perhaps it matters less, but I think people should consider carefully, with a critical eye, any law that places blame upon the victims of sexual harassment, assault, etc. People with power should be expected to be circumspect and responsible in how they interact with people, particularly those under their authority.
Unwelcome and unsolicited are part of the legal definition of harassment here. (Don't know about Canada, but since this allegedly occurred in Utah, Canadian law is irrelevant.) The challenged conduct must be unwelcome "in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive."
I will agree that it is not always easy to determine whether the challenged conduct was unwelcome, especially when there is not equal power between the alleged victim and accused. But that doesn't mean that a power differential is determinative in itself. Subordinates can consent to an affair with their boss. It's a rare occurrence. I wouldn't even call it uncommon. And while it may be morally repugnant in many circumstances, that doesn't mean it's unlawful.
From my vague recollection of some of the facts in this matter, including the text messages, her involvement seems to have been consensual.
What may have been more problematic was the fact that she lost her job. That could form the basis of a
quid pro quo claim. But the mere fact that she lost her job or was even fired may not be enough in itself. Was she let go, either directly or constructively, because submission to the relationship was explicitly or implicitly used as a condition of employment, or because her submission or rejection was used a a basis for employment decisions? Or was it something else, such as once the emotional affair had ended, the parties could no longer be reasonably expected to return to a merely professional relationship and work together. If so, that may not be the same thing as what would be required to support a
quid pro quo claim.
When I look at the matter, again based on a vague recollection of what I read a few years ago, I see concerns about a boss who is married having a mutually consensual emotional affair with a subordinate, but I also recognize that that stuff happens and is human. I also see a boss trying to end it, while the subordinate was pushing to take it to a different level. But what I mostly see, and what I think may still be a problem, is that it seems to be amateur hour in how the organization runs its internal business. Something that is extremely common for many small businesses and organizations. Open Stories Foundation's, or whatever it is now, ad hoc and amateur handling of Rosebud's matter doesn't seem to have changed, at least as far as I can tell with how the Jenn Kamp matter was handled. I know they may operate on a shoestring budget, but it would still be more cost effective to get the advice of a good management side employment attorney as early on in these matters as possible. They shouldn't be relying on the advice of board members.
(Full disclosure. As a management side labor and employment attorney, there may be a bit of self-interest in recommending that business engage people like me.)
