Some complaints of sexual harassment aren’t protected at all

Suppose an employee gets fired after complaining about sexual harassment at work. If that person later claims retaliation, they will have to establish a nexus between the two events, and the complaint also arises to the level of what we call a “protected activity.”

For an internal sexual harassment complaint to qualify as a protected activity, an employee must have a sincere and reasonable belief that they were challenging conduct that violates Title VII of the Civil Rights Act of 1964. Axiomatically, if the complaint is insincere and unreasonable, the plaintiff’s lawsuit will be shorter than a Dallas Cowboys playoff run.

Sexual harassment speaks for itself; it involves unwelcome behavior based on sex. It becomes actionable when that behavior creates an intimidating, hostile, or offensive working environment. Conduct that is not based on the victim’s sex is, yeah, you guessed it, not sexual harassment.

I’ll give you an example.

Last night, I read a recent opinion from the Seventh Circuit Court of Appeals in which the plaintiff, a male police officer, claimed that his employer retaliated against him by firing him after he complained that his male Lieutenant had sexually harassed him. Specifically,  two comments offended him. One was a question about his sex life; the Lieutenant asked if the woman the plaintiff was dating had “brain damage.” In the second comment, the Lieutenant asked the plaintiff if he was “f***ing that Iraqi.”

Both comments are inappropriate and have something to do with sex. But words that contain sexual content or connotations aren’t tantamount to discrimination because of sex. Indeed, the plaintiff could not establish that his encounters with his Lieutenant reflected more than personal animosity or juvenile behavior. No reasonable person would conclude that the Lieutenant directed them at the plaintiff because of the plaintiff’s sex. Plus, because there were only two of them, they were not severe or pervasive enough to alter the conditions of the plaintiff’s employment and create an abusive working environment.

But, even if the plaintiff had engaged in protected activity, he would have lost his retaliation claim anyway, as he failed to establish any causation between his complaint and his termination. The Seventh Circuit noted that, in the interim, the plaintiff was placed on unpaid leave for making inappropriate comments about a female coworker’s breasts, obstructing a workplace investigation (and then lying about it), and then secretly recording and disseminating recordings of confidential meetings in violation of department policy. So, more likely than not, he was fired for that.

Retaliation may be the number one claim of discrimination at work. But proving it isn’t always easy.