Rejecting Sexual Advances as Protected Activity: A District Court Split 1

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1 Rejecting Sexual Advances as Protected Activity: A District Court Split 1 March 5-7, 2009 Litigating Employment Discrimination and Employment-Related Claims And Defenses in Federal and State Courts Scottsdale, AZ Debra S. Katz 2 Katz, Marshall & Banks, LLP 1718 Connecticut Ave., N.W. Sixth Floor Washington, DC (202) Copyright 2009, Debra S. Katz, Katz, Marshall & Banks, LLP. 2 Debra S. Katz is a partner with Katz, Marshall & Banks, LLP, a plaintiffs employment and civil rights law firm based in Washington, D.C. The firm specializes in the representation of plaintiffs in employment law, civil rights and civil liberties matters, and whistleblower matters.

2 I. Introduction An unresolved question in sexual harassment law is whether resisting a supervisor s sexual advances, without more, constitutes protected activity for purposes of a retaliation claim based on oppositional activity. To date, the Eight Circuit is the only Court of Appeals to decide the issue, while the Second, Third, and Seventh Circuits have noted the existence of the question but have not addressed it directly. The district courts are split. A majority of the district courts that have ruled on this issue have held that an employee s refusal to submit to sexual advances constitutes protected activity, but this opinion is certainly not unanimous. The cases listed below illustrating the split are organized by the federal circuit in which the courts sit and the conclusions they have reached. 3 II. Cases Holding that Rejecting Sexual Advances Does Constitute Protected Activity Second Circuit o Laurin v. Pokoik, No. 02-CV-1938 (LMM), 2005 WL , at *4 (S.D.N.Y. Apr. 18, 2005) (holding that plaintiff's rejections of defendant's advances were protected activity because the firm for which the parties worked, and of which defendant was a principal, had no formal harassment policies or mechanisms for reporting harassment, and the only people to whom plaintiff could have complained were defendant's business partner and lawyer). o Lange v. Town of Monroe, 213 F. Supp. 2d 411, 420 (S.D.N.Y. 2002): [W]e agree with the court's reasoning in Little [infra] that resisting sexual harassment is a means of opposing unlawful conduct and hold that plaintiff engaged in a protected activity when she rebuffed [a town official s] advances. o Little v. Nat l Broad.Co., 210 F. Supp. 2d 330, 386 (S.D.N.Y. 2002) (holding that rejecting sexual advances from an employer does constitute protected activity, on the grounds that sexual harassment by an employer or supervisor is an unlawful practice, and an employee s refusal is a means of opposing such unlawful conduct. o Burrell v. City Univ. of New York, 894 F. Supp. 750, 761 (S.D.N.Y.1995): [T]he predominant reason for [plaintiff s] termination was in retaliation either for filing her complaint... or for refusing to accede to Roman's sexual advances, both activities protected under Title VII. (emphasis added). Third Circuit o Berg v. Aetna Freight Lines, No , 2008 WL , at *3 (W.D. Pa. Aug. 19, 2008) (acknowledging reasoning of Straub, Farrell and Armbruster [infra] and denying motion to dismiss based on plaintiff s allegations that she objected to company officers sexual advances). 3 This list is not exhaustive; instead, it focuses on recent cases that demonstrate the majority and minority views on the issue.

3 o Straub v. First Media Radio, LLC, No. Civ. A J, 2005 WL , at *13 (W.D. Pa. Nov. 28, 2005): [A] rejection or resisting of a sexual advance is protected activity under Title VII. o Farrell v. Planters Lifesavers Co., 22 F.Supp.2d 372, 392 (D.N.J. 1998), aff'd in part, reversed in part on other grounds, 206 F.3d 271 (3rd Cir. 2000): Sexual harassment is a form of sex discrimination proscribed by Title VII. Therefore, rejecting sexual advances itself must comprise protected activity for which employees should be protected for opposing within the meaning of 42 U.S.C. 2000e-3(a). o Armbruster v. Epstein, No. Civ. A. 96-CV-1059, 1996 WL , at *3 (E.D. Pa. May 31, 1996): The court is persuaded that refusing sexual advances itself should be viewed as protected conduct under anti-discrimination law, for which employees should not be made to fear retaliation. Fourth Circuit o Gauny v. Potter, No. 4: TLW-TER, 2008 WL (D.S.C. Sept. 23, 2008): There is evidence in the record that the Plaintiff on three different occasions rejected Miller's sexual advances using words to the effect of no, you are my supervisor, it would not be proper and again told him no on two subsequent occasions. Miller responded the last time by hanging up the phone and acting cold towards her the next day. Under the circumstances of this case, her rejections to his advances qualify as protected oppositional activity. Id. at *12 (emphasis added). o Fleming v. South Carolina Dept. of Corrections, 952 F.Supp. 283, 288 (D.S.C. 1996): [Supervisor s] alleged conduct of requesting sex from the plaintiff is an unlawful practice and the plaintiff's refusal is opposition to such unlawful conduct. This court finds that an employer cannot retaliate against an employee for engaging in protected activity, which includes an employee's refusal of the sexual advances of a supervisor or employer. Fifth Circuit o Hughes v. Texas Keg Steakhouse & Bar, Inc., No. 3:05-CV-0061-M, 2006 WL , at *4 (N.D. Tex. Mar. 21, 2006): [Plaintiff] states that she complained to [her supervisors] about their harassment. Such complaints oppose purported sexual harassment. As a result... the Court finds that such comments constitute protected activity under Title VII. Sixth Circuit o Berthiaume v. Appalachian Christian Village Foundation, Inc., No. 2:07-CV-46, 2008 WL , at *3, 4 (E.D. Tenn. Sept. 4, 2008): Plaintiff argues that by objecting to, and rejecting, [her supervisor s] sexual harassment and assault, she engaged in protected activity... It thus appears that plaintiff has provided the

4 short and plain statement of the nature of her claim as required by Rule 8(a) as to the first element of a claim of retaliation under Title VII. o Reed v. Cracker Barrel Old Country Store, Inc., 133 F.Supp.2d 1055, 1070 (M.D. Tenn. 2000) (deeming employee to have engaged in protected conduct when she told her immediate supervisor directly to stop sexually harassing her). o Boyd v. James S. Hayes Living Health Care Agency, Inc., 671 F. Supp. 1155, 1167 (W.D. Tenn. 1987): Clearly plaintiff has established a prima facie case of retaliation. She engaged in protected activity by refusing [her supervisor s harassing] conduct... Seventh Circuit o Estes v. Illinois Dept. of Human Services, No. 05 C 5750, 2007 WL , at *4 (N.D. Ill. Feb. 16, 2007): [I]n the context of this case, the Court holds that plaintiff's refusals of [his supervisor s] advances constitute protected activity. o Roberts v. County of Cook, No. 01-C-9373, 2004 WL , at *4 (N.D. Ill. May 12, 2004): Refusing sexual advances is protected activity under Title VII... [A] victim of harassment should not fear retaliation if she resists sexually predatory behavior by colleagues or supervisors. Eight Circuit o Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000): The employee engaged in the most basic form of protected activity when she told her supervisor, [ ], to stop his offensive conduct. o Coe v. Northern Pipe Products, Inc., 589 F. Supp. 2d 1055, 1104 (N.D. Iowa, 2008): [I]t is theoretically possible for refusal of a superior's sexual advances to constitute protected activity for purposes of a 2000e-3(a) retaliation claim. This court perceives certain factual limitations on or requirements for proof of such a claim, however. (emphasis in original). Among the factual requirements are: [T]he sexual advances that she rejected amounted to conduct that a reasonable person could have believed violated Title VII's standards. Id. [T]he plaintiff must prove some affirmative complaint or report about the conduct in question that attributed the impropriety of the conduct to harassment, discrimination, or other conduct that would violate Title VII. Id. at Eleventh Circuit o McCulley v. Allstates Tech. Servs., 2005 WL , at *21 (S.D. Ala. June 21, 2005): [A] supervisor's sexually harassing conduct is clearly a practice rendered unlawful by Title VII, and an employee's rejection of such activities is plainly a means of opposing such unlawful conduct.

5 o Quarles v. McDuffy County, 949 F. Supp. 846, 853 (S.D. Ga.1996): [Plaintiff] engaged in the most basic form of protected conduct; namely, telling a harasser, who also was serving as her supervisor, to cease all forms of physical and verbal harassment. o EEOC v. Domino's Pizza, 909 F. Supp. 1529, 1536 (M.D. Fla. 1995): When [plaintiff] voiced his opposition to [his supervisor s] sexual advances at the meeting approximately six days prior to his discharge, he was engaging in protected activity under section 704(a) of Title VII. III. Cases Holding that Rejecting Sexual Advances Does Not Constitute Protected Activity Second Circuit o Fitzgerald v. Henderson, 36 F.Supp.2d 490, 499 (N.D.N.Y.1998), aff'd in part, rev'd in part on other grounds, 251 F.3d 345 (2d Cir.2001): Plaintiff argues that the underlying administrative complaint does allege that [her supervisor] retaliated against [plaintiff] because she resisted his sexual advances.... This, however, is insufficient to establish a claim of prior protected EEO activity for which [her supervisor] retaliated against the Plaintiff. o Del Castillo v. Pathmark Stores, Inc., 941 F.Supp. 437, (S.D.N.Y.1996): Even the broadest interpretation of a retaliation claim cannot encompass instances where the alleged protected activity consists simply of declining a harasser's sexual advances. Fourth Circuit o Rachel-Smith v. FTData, Inc., 247 F.Supp.2d 734, (D.Md.2003) (deeming plaintiff's act of telling supervisor to cease sexually harassing behavior not to constitute Title VII protected activity, where plaintiff never told supervisor she thought his advances were illegal and never reported them to third party). Seventh Circuit o Jones v. County of Cook, No. 01 C 9876, 2002 WL , at *4 (N.D. Ill. July 17, 2002) The purpose of the anti-retaliation provision is to prevent employee grievances and Title VII claims from being deterred... [plaintiff] does not allege, though, that [her supervisor] retaliated against her for complaining to his superiors or for filing a Title VII claim. Rather, [plaintiff] alleges that [her supervisor] terminated her because she refused his sexual advances. While this may give rise to a claim for sexual discrimination, it does not state a claim for retaliation. o Bowers v. Radiological Society of North America, Inc., 57 F.Supp.2d 594, 599 (N.D.Ill.1999): [Plaintiff], however, has not alleged that she engaged in any form of opposition. Instead, she alleges that she refused [her supervisor s] advances and that she did not participate in the conduct.

6 o Speer v. Rand McNally & Co., No. 95 C 6269, 1996 WL , at *8 n. 4 (N.D. Ill. Nov.15, 1996): While [plaintiff] also alleges that [her supervisor] retaliated against her for her refusal of his sexual advances, her refusal is not the type of protected activity which is properly the source of a Title VII, retaliation claim. o Finley v. Rodman & Renshaw, Inc., No. 93 C 5504, 1993 WL , at *3 (N.D.Ill.1993): Although plaintiff alleges that [her supervisor] knew his conduct was unwelcome and offensive, she does not allege that she complained to him or anyone else at the company about the alleged harassment. The court cannot infer that [her supervisor s] recognition that his conduct was inappropriate was the result of a protest by plaintiff.