Our employment sexual harassment attorneys are always looking for ways to keep the public more informed as to employee rights and how an employee can protect him or herself in the event that they are subjected to illegal behavior under Ohio or federal law.
The topic for today: how an employee can protect his/her retaliation claim based on sexual advances made against them in the workplace. This issue was recently examined by the United States District Court for the Western District of New York in Raeman v. City of Ontario. In Raeman, the Court answered the specific question of whether a plaintiff’s mere rejection of a sexual advance in the workplace, without reporting the conduct, constituted “protected activity” sufficient to bring a retaliation claim. The Court’s answer: simply rejecting the advance is not enough to bring a retaliation claim.
Specifically, the Court stated in its opinion:
The Court adopts the view that the rejection of sexual advances does not constitute a protected activity. If resisting the advances of a harasser constitutes a “protected activity,” then every harassment claim would automatically state a retaliation claim as well. Moreover, one of the key purposes of the retaliation provisions in anti-discrimination statutes such as Title VII … is preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the statute’s basic guarantees. But if one makes no effort to secure or advance the guarantees of an anti-discrimination statute by taking any action in response to allegedly discriminatory conduct, there can be nothing for the employer to interfere with.
The Court went on to note that the Eighth Circuit has reached a contrary conclusion on this issue and has held that rejection of a sexual advance is sufficient to support a retaliation claim.
Nevertheless, the Raeman decision raises several questions and in some ways puts employee in a quandary. On the one hand, employees who are victimized by sexual advances have to decide whether the conduct is severe or serious enough to report to their employer. Some employees worry that by simply reporting such conduct they are placing themselves in the crosshairs for termination. Thus, some employees may just brush off or ignore the advances, not say anything to their employer, and in the process, not protect a future possible retaliation claim. While at the end of the day it is the individual employee who will have to decide whether to report a harasser’s improper sexual advances, a good practice is to report the conduct, regardless of whether you may think it is severe or not. Reporting the conduct protects you in the event your employer takes disciplinary action against you, and it may prevent future sexual advances from the harasser moving forward.
If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.
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