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Can I Sue A Woman Boss For Sexual Harassment? I Need A Lawyer!

| Jun 9, 2015 | Employment Discrimination, Gender Discrimination, Sexual Harassment, Wrongful Termination |

Best Ohio Sexual Harassment Attorney Answer: It is sexual harassment if I agree to have sex with my boss to keep my job? Is it sexual harassment if my boss gives me a blow job? Can I be fired after I refuse to continue having consensual sex with my boss?

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Most people are familiar with what constitutes sexual harassment in the workplace. (If not, read: What Can I Do About Pornography At Work? Best Sex Harassment Lawyer Reply!; Is It Sexual Harassment If My Boss Talks About My Cleavage? Top Attorney Reply!; Can I Sue If My Boss Texted Me That I Have To Have Sex With Him! I Need A Lawyer!; Sex Harassment Lawyer Best Answers: Can A Promiscuous Woman Still File Sexual Harassment Claims?). Although one can probably imagine situations where the conduct being complained of by the employee is a close call as to whether it whether it rises to the level of a hostile work environment, usually, quid pro quo situations are more easily identified. While reading and reviewing the case that is topic of this blog, I was reminded of one of the most publicized sexual scandals in recent U.S. history, President Bill Clinton and Monica Lewinsky. As an intern, Lewinsky was in a subordinate role to President Clinton, and the allegations that were made involved acts of oral sex and were at least partially substantiated by the infamous, “blue dress.”

Ultimately, it was an allegation of lying under oath that got the President in the most trouble, however, this situation also could have been actionable for a sexual harassment claim. It has been twenty years since the Lewinsky scandal unfolded, yet some employers still haven’t learned the valuable lessons to be taken from sex scandals and sex harassment claims: engaging in sex or sexual actions with a subordinate employee is never a good idea, and likely, a costly mistake for the employer.

Who is the best employment lawyer in Ohio? Get informed about your sexual harassment and gender discrimination claims by calling attorney Brian Spitz and the employment law lawyers at The Spitz Law Firm for a free initial consultation.

The normal assumption when talking about sexual harassment is that some disgusting male boss is praying on some pretty little woman. Or people think of an older powerful man taking advantage of a young woman, a la Clinton and Lewinsky.

Another major misconception is that once an employee agrees to a consensual relationship with a boss, the employee can never have a sexual harassment claim.

But, these assumptions are not always right in sexual harassment cases.

Take this example: a jury in New York awarded plaintiff Corey Lashley $10,000 for compensatory damages and $30,000 for punitive damages in his sexual harassment lawsuit against his former employer. In 2012, Lashley met Sheila Flynn in a club. Flynn told Lashley that she could change his life and invited Lashley back to her apartment to discuss potential employment. During the exchange, Flynn kissed Lashley and the while thinking about the potential job offer, Lashley had consensual sex with Flynn. The next week, Lashley started working for Flynn and the two continued to have a sexual relationship for several weeks. At some point after that, Lashley reconciled with the mother of his child and attempted to break off the romantic relationship with Flynn.

Flynn became enraged over the end of the relationship and kicked garbage cans, slammed doors, and grabbed Lashley in her office and performed oral sex on him. Lashley continued to rebuff Flynn’s efforts, and Flynn told Lashley to fill out an application for some type of license, but that it wasn’t a big deal. Flynn also forced Lashley to fire members of his recruiting team, and take an unpaid vacation so that she could try to get over him. Eventually, Flynn fired Lashley, but there were multiple reasons given for the termination, including Lashley’s failure to secure a license.

After trial in Lashley v. New Life Business Institute, the Defendant employers moved for a new trial or a verdict in their favor, despite the jury’s finding. Explaining plaintiff’s case and theories the United States District Court for the Eastern District of New York held:

Under Title VII, a plaintiff may seek relief for sex discrimination under two theories: (1) quid pro quo or (2) hostile work environment. Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-65, 106 S. Ct. 2399, 2404-05 (1986)). Plaintiff brought, and was successful at trial, under both theories.

“[T]o establish a prima facie case of quid pro quo harassment, a plaintiff must present evidence that []he was subject to unwelcome sexual conduct, and that [his] reaction to that conduct was then used as the basis for decisions affecting the compensation, terms, conditions or privileges of h[is] employment.” Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994). In other words, if plaintiff is able to demonstrate that he suffered an economic injury “because of gender or because a sexual advance was made by a supervisor and rejected by h[im],” he may be entitled to recovery under Title VII. See Kotcher, 957 F.2d at 62; see also Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006); Corrigan v. Labrum & Doak, No. 95 Civ. 6471, 1997 WL 76524, at *6 (S.D.N.Y. Feb. 21, 1997).

Here, plaintiff experienced a loss of a tangible job benefit; namely, he was fired. See Schiano, 445 F.3d at 604 (noting that “[a] tangible employment action usually `constitutes a significant change in employment status, such as hiring [or] firing”); Jin v. Metro. Life Ins. Co., 310 F.3d 84, 91 (2d Cir. 2002). In addition, defendant Flynn made sexual advances towards plaintiff; she repeatedly sent plaintiff flirtatious text messages, invited plaintiff to her house after work, and engaged in sexual contact with plaintiff at the office. There is little doubt that plaintiff rejected these sexual advances.

Explaining, in part, why Lashley was able to succeed on his quid pro quo claim, the court reasoned:

Ultimately, plaintiff is able to prevail on his quid pro quo sexual harassment claim because, viewing the evidence in the light most favorable to plaintiff, the jury reasonably found a causal connection between plaintiff’s termination at NLBI and his rejection of defendant Flynn’s sexual advances. First, a causal connection between plaintiff’s termination and his rejection of defendant Flynn’s sexual advances can be inferred by the short time period between the two events. See Adenji v. Adm. for Children Serv., 43 F. Supp. 2d 407, 433 (S.D.N.Y. 1999) (citing cases). Plaintiff began to indicate to defendant Flynn that he “was feeling bad” about their relationship and that he wanted to stop seeing her around the beginning of May. However, he continued to have sex with defendant Flynn. Eventually they broke up, and defendant Flynn forced plaintiff to go on an unpaid two-week vacation so she could “get over” him, though she then rescinded requirement and allowed plaintiff to come back to work. Shortly thereafter, on July 2nd, plaintiff was terminated. The couple of weeks between their breakup and plaintiff’s termination could lead the jury to infer that defendants fired plaintiff due to his refusal to have sex with defendant Flynn. See Clark County School Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, 1511 (2001) (noting that, in the retaliation context, temporal proximity that is “very close” can establish causation); Carter v. New York, 310 F. Supp. 2d 468, 478 n.5 (N.D.N.Y. 2004) (applying the issue of temporal proximity to the quid pro quo context and noting that a “very close” connection is “typically on the order of days or weeks, not months”).

As for the hostile work environment claim, the court explained that:

A hostile work environment in violation of Title VII exists “`[w]hen the workplace is permeated with disciplinary intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58 (2d Cir. 2004) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367 (1993)). A hostile work environment has both an objective and subjective component; it is “`considered hostile if a reasonable person would have found it to be so and if the plaintiff subjectively so perceived it.’” Id. (quoting Brennan v. Metro. Opera Ass’n, Inc., 192 F.3d 310, 319 (2d Cir. 1999)). To determine whether a reasonable person would find a work environment hostile requires looking at the “totality of the circumstances,” which include: “`(1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee’s work performance.’” Id. (quoting Brennan, 192 F.3d at 319). Generally speaking, to have a sufficient hostile work environment claim, plaintiff “`must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of [his] working environment.’” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000), superseded on other grounds by N.Y.C. Local L. No. 85) (internal quotation marks and citation omitted).

In this case, plaintiff testified that at one point, while he was talking to defendant Flynn in her office, she “started grabbing on [him], rubbing on [his] body” and ultimately gave him oral sex, which plaintiff testified made him feel bad. This unwanted physical contact and sex act alone are sufficient to find a hostile work environment. See Redd v. New York Div. of Parole, 678 F.3d 166, 177 (2d Cir. 2012) (noting that “`direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment’”) (quoting Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001)); see also Richardson v. N.Y. State Dep’t of Correctional Serv., 180 F.3d 426, 437 (2d Cir. 1999) (“Our law is clear, for example, that `even a single incident of sexual assault sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment’ under Title VII.”) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995)).

The court held that Lashley met his burden and presented enough facts and evidence for the jury to conclude that Flynn’s harassing conduct detracted from Lashley’s performance, discouraged Lashley from remaining on the job, or kept him from advancing in his career, and as such, the verdict would stand.

Lashley may be a resident of New York, but that doesn’t mean that there aren’t laws in place to protect employees in Ohio. If you are an employee in Ohio and have experienced behavior or conduct similar to what is contained in this blog then you may have a claim. The majority of employees in Ohio are covered under Federal and State laws contained in Title VII of the Civil Rights Act of 1964 and Ohio Revised Code § 4112.02(A), that are in place to prevent employers from making critical employment related sex.

Sexual harassment is unlawful under Title VII of the Civil Rights Act of 1964 and similar Ohio laws. Sexual harassment is a form of gender discrimination. If you feel that you are being sexually harassed or are working in a sexually charged or hostile working environment, you should not wait to call the right attorney at (216) 291-4744 to schedule a free and confidential consultation. At The Spitz Law Firm, you will meet with a sexual harassment lawyer/hostile work environment attorney to find out what your legal rights are and the best way to protect them. Sexual harrassment is a form of gender discrimination, and employers should be held accountable if they discriminate against female workers in any fashion – but particularly for sexual harrassment. It does not matter if you have been wrongfully fired or are still employed, there is no reason to wait to find out what your legal rights are and how to protect yourself from sexual harassment and gender discrimination.

Disclaimer:

The materials available at the top of this page and at this gender discrimination, wrongful termination, and sex harassment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking “what should I do …”, “I’m being sexually harassed …” “my supervisor grabbed my…”, “my boss is touching…,” “I’ve been wrongfully terminated,” or “how do I …”, your best course is to contact an Ohio sexual harassment attorney/hostile work environment lawyer to obtain advice with respect to sexual harassment/hostile work environment questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this employment law website are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.