Consensual Sexual Relationship May Not Support Subsequent Claim of Retaliation

Title VII’s anti-retaliation provision states that it is unlawful for an employer to discriminate against any individual because he or she opposes an action prohibited by Title VII.  The 7th U.S. Circuit Court of Appeals recently found that an individual’s claim of retaliation was not supported by the evidence, because that individual did not necessarily believe that he was being sexually harassed by his supervisor, with whom he was having a consensual sexual relationship.  Tate v. Executive Management Services, Inc., No. 07-2575 (7th Cir. October 10, 2008).

Alshafi Tate cleaned office buildings in Indianapolis for Executive Management Services, a commercial cleaning company, where he was supervised by Dawn Burban.  Within weeks after beginning his employment in August 2002, Tate began a consensual sexual relationship with Burban.  Beginning in October 2003, Tate attempted to end that relationship after Burban began calling Tate’s home, upsetting Tate’s wife.  On one occasion when Tate tried to discuss ending the relationship, Burban informed him that if the relationship ended, he would lose his job.

On January 13, 2004, Burban and Tate got into a verbal altercation, after which Burban prepared an “insubordination” incident report.  Tate’s employment subsequently was terminated.  Tate filed a lawsuit alleging that he had been sexually harassed by Burban, and that his firing was in retaliation for his rejection of her advances.

At trial, the jury returned a verdict in Tate’s favor on the retaliation claim, although it found against Tate on his claim of sexual harassment.  The company’s motion for judgment as a matter of law/for a new trial was denied by the trial court.  On appeal, the Seventh Circuit reversed that denial, holding that Tate could not support a claim of retaliation because he did not have a “reasonable belief” that he had been sexually harassed by Burban.

In order to support a claim of retaliation, an employee must show: (1) a statutorily protected activity; (2) an adverse employment action; and (3) a causal connection between the two.  In order to show that he had engaged in a “protected activity,” Tate did not have to prove that Burban sexually harassed him.  However, he did have to show that he “reasonably believed in good faith” that the conduct of which he complained violated Title VII, and that he was fired because of that complaint.

The court first addressed the issue of whether Tate actually had made a protected report of sexual harassment, since Tate’s only “complaint” was made directly to Burban.  The federal circuits are split on whether a rejection of a supervisor’s sexual advances is, in and of itself, a protected activity, and the Seventh Circuit has not yet ruled on the issue.  In this case, the court found it unnecessary to answer that specific question.  It found instead that Tate did not show a reasonable belief that Burban’s actions constituted illegal sexual harassment and, therefore, he did not make a complaint of behavior that actually violated Title VII.  Tate’s testimony showed that he felt that he was “wrongly mistreated” when he was fired, and that he and Burban were “not good with each other” once Burban began to call his home and argue with his wife.  These statements point to personal reasons for ending the relationship rather than concerns about the legality of Burban’s actions.  His complaints, therefore, were not protected by Title VII. 

Title VII’s anti-retaliation language was designed to protect the right of an employee to protest discrimination that he or she believes, reasonably and in good faith, violates Title VII.  That statutory language ensures that employees who make such reports remain free from retaliation or reprisal.  While the court’s decision in this case was in favor of the employer, it points out the potential legal issues that arise when supervisors enter into personal relationships with subordinates.  Whether or not a company’s handbook includes an anti-fraternization policy, employers should recognize the possibility for potential legal issues in such circumstances, and should take steps to ensure that individuals in a personal relationship are not in a direct reporting relationship within the company.