Harassment by Jilted Boyfriend is Sex Harassment

Rod Stephens
May 6, 2008 — 1,957 views  
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Allison was a server at Chilli's Bar and Grill in Portland, Maine. She had an "on again off again" intimate relationship with a coworker, who was a line cook. Once Allison began dating another man, her ex-boyfriend began to call her vulgar names which would be considered to be  highly offensive to a female. Allison reported this conduct to management on three occasions. Each time management disciplined the ex-boyfriend more severely. After the third report, the boyfriend was terminated.

Allison sued Chilli's Bar and Grill. She alleged that she was the victim on sexual harassment and that management failed to take prompt and adequate remedial action once it learned of the harassment. Allison's claims were brought under Title VII, the federal law prohibiting discrimination in the workplace. The trial judge dismissed Allison's case because the judge felt the boyfriend's conduct was not directed toward her on the basis of sex but due to a failed personal relationship.

Allison appealed to the First Circuit Court of Appeals, which handles federal trial court appeals for the northeastern United States. The appeals court felt the trial judge erred and held, "In cases involving a prior failed relationship between an accused harasser and alleged victim, reasoning that the harassment could not have been motivated by the victim's sex because it was instead motivated by a romantic relationship gone sour establishes a false dichotomy. Presumably the prior relationship would never have occurred if the victim were not a member of the sex preferred by the harasser, and thus the victim's sex is inextricably linked to the harasser's decision to harass. To interpret sexual harassment perpetrated by a jilted lover in all cases not as gender discrimination, but rather as discrimination 'on the basis of the failed interpersonal relationship' ... is as flawed a proposition..."

So did Allison win her case? No. the Court of Appeals felt that, under these facts, Chilli's had engaged in "prompt and appropriate action" once it learned of the complaints such that it would not be held responsible for the coworker's conduct. An important consideration for the court was that Chilli's had a policy in place that prohibited this type of conduct and set forth a reporting mechanism to be used by employees and that Chilli's actually took action once it received Allison's reports.

Seven Take Aways:

1. Be vigilant.

Regardless of what you wish, workplace romances will happen and they will fail. Once the romance ends, hurt feelings may create a less than harmonious workplace.  As an employer, your best line of defense is to make sure your employees are aware of your policy on interpersonal relationships and that inappropriate conduct following a failed romance will not be tolerated.

2. Train.

Have policies in place that identify how and to whom reports of inappropriate conduct are to be reported.  Make sure your workforce is aware of these policies through periodic training and reminders.

3. Take it seriously.

Don't trivialize a report of harassment or discrimination.  Statements like, "just get over it" or "there have always been problems with you and this other person" are not recognized defenses to a claim of harassment or discrimination. They will be used against you to establish you had notice of a problem and failed to address the problem. Always treat a report of harassment or discrimination seriously. 

4. Communication: the lost art.

Communicate with the person that reported the conduct. Let that person know your company is committed to a harassment and discrimination free workplace. At the same time, provide the person with your policy prohibiting retaliation. Follow up with the person several days afterward to assure no retaliation has occurred and to answer any question that may have arisen.  Document that interaction.  Most importantly, explain the process to the employee.  In many instances, an employee's lack of understanding of your processes creates a perception that the "fix is in."  An open and interactive dialogue with the employee can go a long way toward keeping that person out of a lawyer's office.

Communicate with the perpetrator. Identify the policies that have been violated, provide them with copies of those policies, and make sure they understand your company is serious about having a harassment free workplace.

5. Don't make promises you can't keep.

The victim of harassment probably does not have access to your calendar so they can't see how pressed you are for time.  They are looking to you for help. The absolute worst thing you can do is make promises that you can't deliver on.  You lose credibility, the company loses credibility and the employee hires a lawyer.

6.  Take prompt action.

If inappropriate conduct has occurred, take prompt action that is designed to communicate the message that your company does not tolerate this sort of conduct.

7. Be firm but fair.

Make sure that you treatment of the offender is similar to that accorded others and follows any published policies.  If there is a reason to deviate from your policy or practice, record that reason now. It always looks bad when an employer tries to justify its conduct after litigation has been commenced.  Finally, does your action pass the smell test; will a jury, with the benefit of 20/20 hindsight, conclude your actions were appropriate; and was this a considered action or a knee jerk reaction?

Rod Stephens

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Rod brings a unique perspective to the table in that he represents management and employees. We feel this allows us to offer a broader perspective to our clients in that we understand cutting edge employment law issues and how they are perceived by management and employees. Employment law matters can require immediate response in times of crisis. On those occasions, you can take comfort in the knowledge that we are prepared to provide the type of response that takes advantage of years of experience.