posted on Tuesday, May 02, 2006 9:58 AM
by
Lou Michels
Dangerous Liaisons, Part I
Some people just can't avoid taking risks in their professional lives. This works well if you're a trapeze artist, professional bungee jumper, or Bill Clinton, but not if you're an at-will employee engaging in sexually provocative acts with your boss in front of his wife. Such were the facts in a case decided by the 8th Circuit recently.
The female plaintiff in this case, who rose from secretary to the highest-paid employee in the company (and we can only wonder about the basis for that quick ascent) admitted pinching the company owner on the bottom and getting pinched, in front of the owner's wife, who also worked for the company. Not content with twisting the tiger’s tail, so to speak, the plaintiff also admitted leaving sexually suggestive notes for her boss around the office, even though she knew the aggrieved spouse was, well, aggrieved with her and might have the power to fire her. Mrs. Owner actually found one of the notes by searching through a dumpster and pieced it together. It was sufficiently inflammatory that she fired the plaintiff, but the owner reinstated her, only to fire her several months later. At her termination, the owner told the plaintiff that his wife was making him choose between his “best employee or her and the kids."
The plaintiff sued for gender discrimination and sued the wife for tortious interference with a business relationship. She lost on both counts at the district court, and the 8th Circuit affirmed. The court first noted that this was not a sexual harassment case, but rather a case claiming discrimination on the basis of an employee's admitted, consensual sexual conduct with a supervisor. Noting that even the EEOC has not found Title VII applicable to cases involving sexual "favoritism" or so-called "disfavoritism", the 8th Circuit joined a number of other courts holding that an employer may terminate an employee for consensual sexual conduct that the employer (or his spouse) disapproves of.
For some reason, the court carefully distinguished this case from the situation where the employee did not engage in sexually suggestive conduct, but the manager’s spouse still perceived her as a threat to her marriage -- presumably the court felt this might move the case into a sexual stereotyping analysis. In any event, absent a showing that men had engaged in similar conduct but had not been terminated, or that in office romance cases the employer had consistently fired the female involved, there was no evidence of gender discrimination sufficient to raise an issue of material fact. The court also made short work of the tortious interference claim by noting that the motivation for the owner's wife to have plaintiff fired was not to damage the plaintiff in a business relationship, but to preserve the owner’s marriage.
A nice general rule out of this case -- don't engage in sexually provocative behavior with your boss (or any other coworker) unless you're real good friends with the spouse involved. I suppose that includes your own spouse, but, quite frankly, I'd advise against pushing those buttons under any circumstances.