Rejection Of Sexual Advances Was Protected

Court Holds Employee’s Retaliation Suit May Proceed

A federal judge in Indiana recently ruled that a company may be held li-able for retaliation in a lawsuit filed by a worker who ended a sexual relationship with his supervisor. According to the judge, the employee’s statement that he refused to leave his wife to save his job may have constituted opposition to an unlawful employment practice. Tate v. Executive Management Services, Inc., No. 1:05-CV-47, U.S. District Court for the Northern District of Indiana (October 12, 2006).

Factual Background

In August 2000, Alshafi Tate began working as a custodian for Executive Management Services, Inc. (EMS). At some point during his employment, Tate became involved in a consensual sexual relationship with Dawn Burban, one of his supervisors. When Tate tried to end the relationship, Burban told him that he would have to choose between his wife and his job. Tate nonetheless ended the relationship.

Burban responded by cursing, yelling and telling Tate to leave the building. Burban then called her supervisors and told them that Tate was insubordinate because he refused to handle an assignment. Burban completed a discharge form for Tate, and on January 14, 2004, EMS terminated his employment.

Shortly thereafter, Tate filed a law-suit against EMS alleging sexual harassment and illegal retaliation. EMS moved to dismiss both claims. The jury determined that Tate failed to prove his sexual harassment claim but that EMS was liable for retaliation. The court then turned to whether EMS’s motion for directed verdict on Tate’s retaliation claim should be granted.

Legal Analysis

EMS argued that Tate’s retaliation claim should be rejected because the company did not have knowledge of Burban’s conduct, and more specifically was not aware of Tate’s alleged opposition to an unlawful employment practice. The court found that an employer could be liable if an employee is motivated by retaliation in providing information to the employer’s decision-maker and the decision-maker relies on this information to make an adverse employment decision.

In this case, the court found that Burban reported an incident with Tate to her superiors and completed his termination form. Moreover, according to EMS’s decision-maker, one of the reasons for firing Tate was the altercation Burban reported. The court ruled that if the jury believed that Burban was motivated by a retaliatory animus and EMS’s decision-maker relied on Burban’s information, it could reasonably have found that EMS was liable for Burban’s retaliatory motive.

The court then turned to EMS’s second argument that Tate’s retaliation claim should fail. According to the company, Tate did not oppose an unlawful employment practice. The court noted that in an earlier ruling in this case it had held that Tate’s statements ending the relationship, in response to Burban’s ultimatum, were in opposition to an unlawful employment practice and were protected. The court relied on other cases which have held that opposing sexually harassing behavior constitutes opposition to an unlawful employment practice. Thus, the court concluded that there was a question as to whether Tate opposed an unlawful employment practice and denied EMS’s motion for judgment in its favor.

Practical Impact

According to Jan Michelsen, a shareholder in the firm’s Indianapolis office: “This ruling should encourage employers to reevaluate their office romance policies, and if they don’t have one, they should implement one. There are many examples of successful office romances, including Bill Gates, Steve Ballmer (CEO of Microsoft), and Steve Case (AOL), all of whom met their wives at work. Despite the relaxed attitude of office romances in today’s workplace, companies can avoid many of the pitfalls of office romances gone sour by anticipating and addressing workplace issues through consistently enforced policies.”

Michelsen continued: “Cases like Tate may be preempted if, for example, the employer has policies in place requiring employees to disclose office romances and ensuring that supervisors involved in a relationship with a subordinate do not make any career decisions about the subordinate. Training is also a fairly inexpensive way for employers to reduce their exposure. Companies that produce evidence of regular training and a thoroughly disseminated anti-harassment policy put themselves in a better position to defend themselves in employment litigation.”

Note: This article was published in the Dec/Jan 2007 issue of the Indiana eAuthority.