Sexual Harassment and Retaliation

Michael Maslanka of work matters recently made some predictions about the Supreme Court’s handling of current employment law issues and about what the Court will likely take up next in this field. He predicted that the Court will soon address a growing split among district and some circuit courts on whether an employee engages in protected activity when he/she rebuffs an unwanted sexual advance. I was frankly surprised to see that there is a split on this issue, which seems fairly obvious to me. I will lay it out here and hope to hear what others think.

Under Title VII, it is unlawful for an employer to “discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” In Dozier-Nix v. District of Columbia, the court recently found, correctly I think, that rejecting an unwanted sexual advance counts as “protected activity” under the opposition clause (i.e. “because he has opposed any practice made an unlawful employment practice by this subchapter”). But the court noted that not all courts are in agreement on this point and referenced a collection of cases on both sides of the issue and a recent Fifth Circuit case, LeMaire v. Louisiana Department of Transportation and Development, that came out the other way. The Fifth Circuit rejected a retaliation claim based on rejection of sexual advances because the plaintiff had failed to provide any authority to suggest that it did constitute protected activity and cited an unpublished Fifth Circuit case in support.

Although the Fifth Circuit relied on a lack of authority, it seems to me to have overlooked the basic meaning of the retaliation provision in Title VII. Clearly, I think, rejecting sexual advances (i.e. sexual harassment) constitutes opposing a practice made unlawful under Title VII. Consider the likely scenario when this issue arises: A supervisor sexually propositions his subordinate employee. She (I’m using the genders most commonly associated with these claims but it could arise in many variations) rejects his advances, telling him she is not interested. Before she has a chance to complain about the sexual harassment to a manager, her supervisor demotes her, saying that after their interaction, he is no longer comfortable supervising her work. Eventually, the female employee complains and after a three-month investigation, the harasser is terminated. But for three months, the employee earns less money, has diminished responsibilities, and misses professional development opportunities. There is no doubt that her rebuff of the sexual advance led to an adverse employment action. I don’t think there is a doubt that the rebuff itself was protected activity. In fact, this scenario turns the sexual advance into a kind of after-the-fact quid pro quo harassment, and there is little debate about its illegality. The boss never told her she would be demoted unless she went out with him but her rejection led to that consequence.

Can courts that find such actions not to be protected activity really intend victims of harassment to endure sexual advances in the moment and complain later in order to insure they won’t face retaliation? What if the sexual advance was more than verbal? Is an employee required to endure physical touching or worse to preserve her job? I cannot imagine how the answer could be yes but perhaps I’m not seeing all sides of the issue. I’ll look forward to comments on this.

I also want to say that this is my final post as a guest blogger for the month of August. I am now back to focusing my energies on the fall semester, revisions to my forthcoming article  in the Berkeley Journal of Employment and Labor Law, and the roller-coaster that is the hiring market! I have truly enjoyed my time as a guest blogger. Thanks so much to CoOp for this opportunity.


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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.