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Harassment by jilted boyfriend is “because of sex”

Allison Forrest 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 that are highly offensive to females. Allison report this conduct to management on three occasions. Each time management disciplined the ex-boyfriend more severely. After the third instance, 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.

What is the “Lesson Learned?”

First, this case was brought under federal law, Title VII, and not under the Washington Law Against Discrimination (WLAD). Under Washington law, in cases involving coworker harassment, once the employer knows or should have known of the harassing conduct, the employer must take “reasonable, prompt and adequate corrective action.” Although one never knows what a judge will decide, in this case, a judge could have decided that the actions of the employer, although prompt, were not adequate nor were they designed to end the harassment.

Second, romances will occur in the workplace. Workplace romances pose unique problems. During the romance, there can be perceptions of favoritism if a supervisor and subordinate are involved. Once the romance ends, there can be hurt feelings and jealousy that can result in sexual harassment or, worse yet, workplace violence. Employers should have policies in place regarding workplace relationships. Supervisors and managers should not be permitted to have romances with individuals under their control since this can result in immediate employer liability.

Third, your company must have a policy in place prohibiting harassment and discrimination. That policy should have a reporting procedure and should clearly state that reports of harassment and discrimination will not result in retaliation. Employees, through the policy, should be encouraged to report their workplace romance and any problems arising from a failed romance.

Finally, once you learn of a problem, act decisively. Oftentimes employers will face financial exposure because one of the parties involved is highly placed within the organization or is a popular employee. In cases of this nature, your response should be geared toward the severity of conduct and assure that the conduct will not be repeated. Allowing your response to be tempered by an employee’s status or popularity will only serve to expose your company to a large damages award.

Nothing in this Blog is intended as legal advice or to form an attorney client relationship. Employment cases turn on specific facts. You are encouraged to seek the advice of a seasoned legal professional who will be able to provide advice geared toward you particular legal circumstance.

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