Showing posts with label unwelcome. Show all posts
Showing posts with label unwelcome. Show all posts

Tuesday, April 23, 2013

Sixth Circuit: No Sexual Harassment When Plaintiff Voluntarily Had Long-Term Affair With Her Boss

Yesterday, the Sixth Circuit affirmed summary judgment in favor of a construction employer on a sexual harassment claim brought by a woman who had a long-term affair with her boss, who was also her cousin’s husband.  Souther v. Posen Construction, Inc., No. 12-2256 (6th Cir. 4-22-13).  The Court found that the plaintiff could not show that her supervisor’s advances were “unwelcome” or that having sex with him was a term or condition of her employment.

According to the Court’s opinion, the plaintiff met the individual defendant when he began dating her cousin in 1977 and she was a bridesmaid at their wedding.  They were still married at the time of his deposition.  He helped her get a job in 2005 as a trainee at the construction company where he then worked.    They began an affair that would last – off and on – until October 2010.  During this time, he never indicated – except once in a joke – that he would fire her if she stopped having sex with him.  The affair would continue even during seasonal layoffs and even after his employer closed their division and laid him off.  He paid some of her bills, made repairs at her home and took trips together and then rehired her to work when he found another job.  In September 2010, she was laid off – purportedly for lack of work.  Prior to this she had never complained to human resources or anyone else that she was being sexually harassed.

He then ended the affair in October and she retaliated by informing his employer of their affair and her desire to be rehired.  She filed a Charge with the EEOC and then the lawsuit.

To determine whether a co-worker’s sexual advances or requests are unwelcome, we focus on the plaintiff’s “words, deeds, and deportment.”  . . .  On this record, a jury could not find [his] advances unwelcome. First of all, [the plaintiff] never complained to [him], human resources, her union representative, or anyone else, that [his] advances were unwelcome. . . .

[The plaintiff’s] conduct during the relationship also demonstrates that the extramarital affair was not unwelcome. The record shows that [she] was a willing participant, even though [he] was the one who put things into motion. The two had known each other and were friends for close to thirty years when the affair began. They remained friendly during times when the affair was dormant. They took trips together. One involved an overnight camping trip. Another involved [her]visiting [him] in Lansing, where he was working a job for [the company]; [she] did not work for [the company] at the time. The couple resided together in a hotel while they both worked for [the company] in Toledo. The one time [she] threatened to disclose the affair to  [his] wife was after [he] ended it, when [she] became angry about being unemployed.  [He] freely gave [her] money when she asked, and never sought repayment. He offered to make repairs and upgrades to her home, and she freely accepted. Further, [she] trusted [him] with her private information, including her banking information. He once deposited into her bank account money she later used to pay bills. She also gave him the password to her email account so he could use it to send her resume on her behalf. Finally, during the entire course of the affair, [she] was sexually intimate with [him] and no one else. Given the nature of the close and consensual relationship, no jury could find [his] advances unwelcome.

The Court also found that she could not show that consenting to the affair was a term of her employment:  “[I]t was [him] who ended the affair, and he did so almost a month after [she] was laid off from [the company], so she cannot show that refusing his advances (which she never did) caused her layoff.

 
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.