Of all employment claims presented to the Equal Employment Opportunity Commission, retaliation
numero uno. It's been that way since 2010.
There are three essential elements of a retaliation
claim: (1) protected activity -- opposition to discrimination or participation
in the statutory complaint process; (2) adverse action; and (3) causal connection
between the protected activity and the adverse action.
This post focuses on "opposition to
discrimination." Specifically, is withdrawing from what one perceives to
be a sexual advance by one's employer opposition to discrimination and, thus, a
In Raeman v. City of Ontario, the plaintiff
alleged that he rejected sexual advances at a photo copier. The plaintiff then
claimed that the harasser's close friend later assaulted the plaintiff, which
ultimately ended in the plaintiff's termination. In the time between alleged
sexual harassment and termination, the plaintiff never complained to management
about the alleged sexual harassment.
So, can he make out a viable retaliation claim?
According to the United States District Court for the
Western District of New York, in this
opinion [an enhanced version of this opinion is available to lexis.com
subscribers], the answer is no:
The Court adopts the view that the rejection
of sexual advances does not constitute a protected activity. If resisting the
advances of a harasser constitutes a "protected activity," then every
harassment claim would automatically state a retaliation claim as well.
Moreover, one of the key purposes of the retaliation provisions in
anti-discrimination statutes such as Title VII ... is preventing an employer
from interfering (through retaliation) with an employee's efforts to secure or
advance enforcement of the statute's basic guarantees. But if one makes no
effort to secure or advance the guarantees of an anti-discrimination statute by
taking any action in response to allegedly discriminatory conduct, there can be
nothing for the employer to interfere with.
The Court did note, however, that at least one federal appellate court has held that
rejection of sexual advances is "the most basic form of protected
But, clear answer or not, you don't want to be in the
position of having to defend a sexual harassment or retaliation lawsuit. Train
your employees to complain about anything they experience or witness in the
workplace, which smacks of unlawful harassment.
This article was originally published on Eric B. Meyer's blog, The Employer
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