Sexual Harassment and Retaliation

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7 Responses

  1. Marcia says:

    I think you’re right to be surprised. Shouldn’t this be covered by Crawford v. Metro Gov’t of Nashville? At least by implication? If describing harassing behavior is opposition, then surely objecting to harassing behavior is opposition. Maybe Justice Alito’s concurrence suggests one loophole–that employees who don’t communicate their opposition to harassment to their employers in any way might, at least depending on the context not be protected, but that seems an issue of motive, not an issue of whether the activity is protected. It’s hard to say that an action is retaliation for protected activity if the retaliator doesn’t know about the protected activity. While that affects liability, it doesn’t affect whether the conduct would have been protected.

  2. TJ says:

    I agree with you on the policy merits and am too surprised there is a circuit split on this issue, but once you quote the statutory text I can see how it might develop. Lets not confuse policy merits with literal text here. A supervisor propositioning a subordinate is slimy and creepy but, in and of itself, is not sexual harassment and is not an “unlawful employment practice.” At the time she rejects him, she is therefore not “opposing” an unlawful practice but simply rejecting a creepy unsolicited invitation. I can see a very good case for creatively interpreting the statute to say that the unsolicited invitation retroactively becomes an unlawful practice after the boss demotes the subordinate in response to the rejection, but you can’t get that merely out of the statutory text.

  3. Anon says:

    Why does it matter whether rejection of an unwanted advance is opposition under Title VII? If an adverse employment action is taken against an employee who rejects an unwanted advance, isn’t that just garden-variety sexual harassment, actionable under the statute? What is added by treating the adverse employment action as retaliation?

  4. Sam says:

    I’m with Anon – I don’t understand why this is framed as a “retaliation for opposition” question. Turning down an initial sexual advance may or may not count as opposition to unlawful conduct, I guess, depending on the facts – but if the employer (incl supervisory agent thereof) takes adverse action against you because you said “no,” isn’t that perfectly obviously unlawful as QPQ sex harassment and just plain old sex discrimination? (Leave aside the hypotheticals that make law clerks laugh, about “what if the propositioner is bisexual ha ha ha”)

  5. Sam says:

    I guess the answer might be “sometimes courts play this sort of word game as a way to rule against plaintiffs without getting to the meat of things, by saying things like ‘well you only argued that you have a retaliation claim, and didn’t say the magic words QPQ'”

  6. Mike Maslanka says:

    Thanks for the notice. Mike

  7. prometheefeu says:

    But there is no quid pro quo or harassment here. Even from a policy POV this doesn’t seem like a goods way to interpret the statute. We don’t want people to choose between unwanted sex and their job (because we view it as coercive). But the employee doesn’t know at the time that saying “no” will result in demotion, so they can’t be coerced by that fact. Maybe even the supervisor doesn’t know he will be too uncomfortable to keep working with subordinate if rejected. The later demotion/firing is unfair and a jerk move, but I don’t see why it would retroactively make the initial proposal harassment or QPQ.