Is rejecting a sexual advance, without reporting it, protected activity?

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 protected activity?

The answer after the jump…

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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, 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 activity.”

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.

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