Kind of sounds like the start of a beautiful movie or novel, doesn’t it?
Unfortunately, however, it became more Lady Gaga. Or, more precisely, the writings of the Fourth Circuit Court of Appeals adjudicating an on-again-off-again sexual relationship between the “lovers” who became “colleagues” in the “workplace” and, later, plaintiff and defendant in a quid pro quo sexual harassment lawsuit.
We don’t talk about quid pro quo much here. So, I’ll either refresh your recollections or educate some of you on a somewhat obscure cause of action for sex discrimination under Title VII.
To prove quid pro quo sexual harassment, a plaintiff must show: (1) she is a member of a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) her reaction to the harassment affected tangible aspects of her compensation, terms, conditions, or privileges of employment; and (5) the employer knew or should have known of the harassment but failed to take remedial action.
Think: “Sleep with me, or you’re fired,” which is essentially what the plaintiff claimed happened to her. Specifically, the plaintiff posited that when she ended the relationship once and for all, the defendant responded, “You will need to transition out of the company,” which he confirmed in writing.
In his deposition, the defendant testified that he was “unhappy with her work performance.” The plaintiff’s employment with the company ended the following month.
Was this quid pro quo sexual harassment? The parties agreed that, as a woman, the plaintiff was a member of a protected group. The defendant also knew of the alleged behavior. But they hotly disputed the other three elements, at least one of which (determining whether the behavior the plaintiff endured was unwelcome) is highly subjective. Indeed, the Fourth Circuit noted, “That question presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact.”
Here, the parties couldn’t agree on the date and manner in which the relationship ended, which was material to whether the defendant’s advances were unwanted and whether his termination of the plaintiff’s employment was legit or based on her sex. On a motion for summary judgment, which the defendant filed here, a court must decide all issues of disputed fact in favor of the non-moving party.
A jury may see it differently. But, win or lose, a workplace romance between manager and employee, especially in the same reporting line, can become an expensive ordeal for any organization. And that’s no good for anyone.
Except me. I’m a management-side employment lawyer who bills by the hour. Now, if you’ll excuse me, I need to run out and gas up the Lambo.
Err, Lambos.