Employee’s termination for ending affair was not retaliation

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Exactly what constitutes sexual harassment, and retaliation for complaining about sexual harassment, are divisive issues that have long bedeviled courts and attorneys alike.

But it would seem self-evident that, if an employee is terminated for rejecting a supervisor’s sexual advances, the law has been broken.

However, an Oct. 10 decision from the Seventh Circuit demonstrates that the matter is not so clear.

The jury found that the employee, Alshafi Tate, was fired because he ended his sexual relationship with his supervisor, Dawn Burban.

But the court reversed on his retaliation claim, because it found that Tate ended the relationship for “personal reasons … rather than concerns about the legality of Burban’s behavior.”

As a result, the court concluded that he did not engage in any statutorily protected activity, and the elements of retaliation were not met.

In 2002, Tate was hired to clean office buildings in Indianapolis for Executive Management Services, Inc. (EMS), and Burban was his field supervisor.

According to Tate, within a week, he and Burban began having consensual sex. Burban denies the relationship.

Tate testified he tried to end the relationship in October 2003, because he got married that August, and the affair interfered with his marriage. Tate testified that Burban said he would be fired if he did not continue the relationship, and, in January 2004, he was terminated for “insubordination” towards Burban.

Tate sued, alleging both sexual harassment and retaliation. The jury found in favor of EMS on the sexual harassment claim, but in favor of Tate on the retaliation claim.

EMS appealed, and, in an opinion by Judge Ann Claire Williams, the Seventh Circuit reversed the jury’s verdict on retaliation.

The court began by noting a circuit split on whether a person who rejects a supervisor’s sexual advances has engaged in a “protected activity.”

The Eighth Circuit has held that is the most “basic form of protected conduct.” Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000). The Fifth Circuit has held that a rejection of sexual advances is not protected. LeMaire v. La. Dep’t of Transp. & Dev. 480 F.3d 383, 389 (5th cir. 2007).

In the case at bar, the court assumed for purposes of argument that there may be circumstances in which a person who rejects his supervisor’s sexual advances has engaged in a protected activity.

However, it declined to affirmatively decide the issue, because it found that Tate failed to show that he believed the practice he opposed violated Title VII.

Key to its determination were statements in the record that Tate did not subjectively believe he was being sexually harassed.

The court found that all of Tate’s statements, “point to personal reasons for ending the relationship rather than concerns about the legality of Burban’s behavior.”

While the court emphasized that it was not requiring an employee to utter any “magic words” to indicate he believes the supervisor’s behavior is unlawful, the court found the record in this case “devoid of any statements that indicate sexual harassment was at issue.”

Analysis

As shocking as the holding in this case is, it should be an easy case for plaintiffs’ attorneys to distinguish in future cases.

The facts seem clearly on the side of the plaintiff -– the jury found that he was terminated from his employment for ending a sexual relationship with his supervisor.

We can only speculate as to why the jury found as it did — rejecting the sexual harassment claim, but accepting the retaliation claim.

A likely possibility is that it found the sexual relationship consensual, and so found for the employer on the harassment claim; but agreed that terminating the employee for ending the relationship was retaliation.

The case presents the classic form of quid pro quo discrimination (employment contingent on sex), except that, given the jury’s findings, it must be fit into the legal framework for retaliation, rather than harassment.

That should not be difficult to do, notwithstanding the decision in this case.

The court wrote that nothing in the record “indicate[s] that Tate believed he was being sexually harassed.”

From a practical standpoint, however, unless an employee is a very recent immigrant to this country, he or she should know very well that it is illegal for a supervisor to make employment contingent on sexual relations.

A simple point-blank question –- “Did you know it was illegal for your supervisor to make employment contingent on sex?” — followed by a simple answer — “Everybody knows that” — would make the opinion in this case distinguishable.

In an interview, Jeffrey S. Hynes, of Jeffrey S. Hynes & Associates SC, in Milwaukee, co-chair of the Wisconsin Employment Lawyers Association, agreed that the case should be easily distinguishable in most cases.

Hynes noted that the court did not retreat from existing case law holding that no magic words are required to support a retaliation claim. Nor did it retreat from case law holding that a plaintiff’s statement indicating that the supervisor’s conduct is inappropriate or unwelcome, in the context of the employment relationship, is sufficient to support a retaliation claim.

The lesson for plaintiffs’ attorneys that Hynes found is that attorneys can’t just rest on “good” facts alone, or rest on a presumption that oppositional conduct by the employee alone will be enough to preserve a jury verdict or survive summary judgment.

“An attorney must elicit statements from the plaintiff indicating a reasonable belief that the supervisor’s conduct is illegal in the context of the ongoing work relationship,” Hynes said.

“The plaintiff got the raw end of the deal not because the opinion is a shift in the law. Instead, the plaintiff was just not sufficiently articulate in his testimony.”

Hynes concluded, “If the plaintiff expresses opposition in the context of the work relationship, it will pass muster. Here, the comments were all about the status of the consensual personal relationship that preceded the termination. That’s why I think the case will be readily distinguishable.”