Sunday, April 30, 2006
[T]his case presents the limited question of whether Title VII's prohibition on discrimination on the basis of "sex" includes a termination on the basis of an employee's admitted, consensual sexual conduct with a supervisor.
Thus begins the recent 8th Circuit opinion in the Title VII case of Tenge v. Phillips Modern Ag Co., No. 05-2803 (8th Cir. April 28, 2006).
The case concerns a female secretary who took a liking to her male boss, and demonstrated her interests through a number of love notes and a few physical touchings.
Only problem was that her boss' wife was also her boss and she fired the secretary when she pieced together an old love note that she found in a dumpster. Although the male boss initially reinstated the secretary, he eventually again terminated her stating that his wife was "making me choose between my best employee or her and the kids."
The 8th Circuit affirmed the district court granting summary judgment to the employer finding that it was not illegal to fire an employee for engaging in consensual sexual conduct with a supervisor. Characterizing this case as one of sexual favortism, the court stated that:
the principle that emerges from [sexual favoritism] cases is that absent claims of
coercion or widespread sexual favoritism, where an employee engages in consensual
sexual conduct with a supervisor and an employment decision is based on this
conduct, Title VII is not implicated because any benefits of the relationship are due
to the sexual conduct, rather than the gender, of the employee.
Additionally, as a case involving consensual sexual conduct without allegations of hostile work enivronment, the court also found that:
A number of federal district courts have faced similar cases and concluded that terminating an employee based on the employee's consensual sexual conduct does not violate Title VII absent allegations that the conduct stemmed from unwelcome sexual advances or a hostile work environment.
In sum, the court concluded that if the "ultimate basis for [an employee's] dismissal was not her sex, [but the boss's] desire to allay his wife's concerns over [the employee's] admitted sexual behavior with him," a claim of sex discrimination under Title VII cannot be made out.
Hat Tip: How Appealing