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Strange Bedfellows

Posted by Frank Steinberg | Oct 16, 2008 | 0 Comments

The 7th Circuit Court of Appeals (that's in Chicago for those of you who don't follow such things) has just issued a ruling on retaliation under Title VII for breaking off an affair with your boss.  Here's the opinion.

The facts were simple.  Tate, a man, was engaged in a consensual affair with his supervisor, a woman.  After Tate married someone else he broke off the affair in order to be true to his wife.  The supervisor objected (loudly) and had Tate fired, allegedly for refusing a work assignment and insubordination.  Tate requested but was refused the opportunity to explain his version of the facts.

A jury found that Tate was retaliated against but was not sexually harassed.  The 7th Circuit reversed the judgment for retaliation.

The court acknowledged that other courts disagree : "As a threshold matter, there is a circuit split about whether a person who rejects a supervisor's sexual advances has engaged in a protected activity."   In essence the court held that because Tate did not know that his supervisor's conduct violated Title VII, he had not proved his claim.

So let me get this straight.  If you're fired because you break off an affair with the boss and know that the boss's conduct violates Title VII, you win.  But if you're fired because you break off an affair with the boss and don't know that the boss's conduct violates Title VII, you lose.  To borrow a maxim from another context, ignorance of the law may be no excuse, but the rule that results from this case seems a little too technical to apply fairly in the real world.  To say nothing of the fact that it yields opposite results for plaintiffs who are treated exactly the same way but have different subjective knowledge.  It just doesn't seem right.

Does anyone have a different perspective?

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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