Employment Law Daily Emails expressing sexual desire for boss indicated affair was welcome; no hostile environment claim
Tuesday, January 23, 2018

Emails expressing sexual desire for boss indicated affair was welcome; no hostile environment claim

By Marjorie Johnson, J.D.

An employee who exchanged hundreds of sexually charged emails with the company’s general manager during a two-month consensual affair, and only complained about his “harassment” after her fiancé learned of the relationship and reported it to the employer (who ordered the GM to resign or be fired), failed to defeat summary judgment on her Title VII hostile work environment claim. A federal court in Texas determined that she was undisputedly unable to show that the GM’s conduct was unwelcome or that the conduct was so severe or pervasive so as to adversely affect her employment. Moreover, the employer established the Ellerth/Faragher affirmative defense as a matter of law (Holmes v. North Texas Health Care Laundry Cooperative Association, January 18, 2018, Lindsay, S.).

Romance develops. About three months after the customer service employee was hired, she began having informal email exchanges with the GM, who was married. A few months later, in March, their messages became more frequent and more personal. For example, she sent him a text message containing a link to “Gorilla,” a sexually graphic song by Bruno Mars, and also referenced romantic songs in her communications with him.

Sexual encounters. The two began communicating using private Gmail accounts instead of work email. On March 13, she sent him a message stating “I am incredibly attracted to you. I don’t know what it is. I feel safe when I am around you but you also make me feel sexy. I haven’t felt that way, ever.” They had their first sexual encounter the next day and their physical relationship continued over the next two months. They engaged in sexual relations numerous times in various locations, including parking lots, hotels, and at the worksite in the early morning hours before others arrived.

Explicit emails. The two also exchanged hundreds of emails over the next couple of months, many of which were sexually graphic. The employee’s messages stated that she missed him, graphically described sexual acts she wanted to perform or had performed with him, professed her love for him, and expressed how much she didn’t want their relationship to end. He similarly sent voluminous emails to her, many containing playful banter or describing sexual fantasies and acts he had with her or wanted to perform with her.

Fiancé exposes affair. In early May, the employee’s fiancé found out about the affair, cancelled their wedding, and alerted the GM’s wife and the employer. On May 5, the employer initiated an investigation, placed the employee on two weeks of paid leave, and instructed the GM to stay away from the worksite. Though it found no evidence of sexual harassment, it gave him the choice to resign or be fired. After he resigned effective May 9, the employer advised the employee of such and that her position was still available. However, she never returned.

Her conduct didn’t show “unwelcome” harassment. The employer was granted summary judgment because the employee undisputedly couldn’t show that the GM’s conduct was unwelcome. Significantly, whether his sexual advances were welcome or not couldn’t be determined by her subjective state of mind. Rather, the Supreme Court has held that the proper inquiry was whether she—by her conduct—indicated that they were unwelcome.

The court rejected the employee’s assertion that a triable issue existed since her email comments were attempts “to appease him, to placate him, to tell him what he wanted to hear.” The issue was not whether she was trying to appease him, but whether she indicated by her conduct that his sexual advances were unwelcome. There was no evidence that she had done so, or that there was she at any point clearly indicated that, going forward, his conduct would be considered offensive.

Considering the entire record—including the plethora of email communications between the two in which she unambiguously stated her desires to have sexual relations with him, described how much she enjoyed these encounters, and decried how much she missed and loved him—no reasonable jury could conclude that the GM’s sexual advances were “unwelcome.” The court went on to note that it “in no way approves or condones” the GM’s conduct, which “was ignominious, reprehensible, and showed a total lack of judgment on his part.” However, the employee was undisputedly a “mutual and willing” participant in the sexual banter and conduct.

Didn’t affect ability to do job. Moreover, the GM’s sexual conduct was not sufficiently severe or pervasive to affect a “term, condition, or privilege,” of her employment. The evidence showed that she welcomed their sexual relationship and there was no suggesting that she was unable to do her job because of his conduct or that she was discouraged from continuing her employment. Rather, she was performing in a satisfactory manner until her ex-fiancé reported the affair to her employer and it was only after her two-week paid leave that she did not return to work.

Ellerth/Faragher affirmative defense. Finally, the employer was entitled to Ellerth/Faragher affirmative defense as a matter of law. First, it had a detailed ant-harassment policy which the employee acknowledged receiving upon hire. Once the GM’s alleged harassment was reported, it promptly investigated, ordered him not to return, and severed his work relationship in less than a week. Thus, it undisputedly exercised reasonable care to prevent and to promptly investigate and address the reported sexual harassment of the employee. Moreover, the employee unreasonably failed to take advantage of its preventative or corrective opportunities, since she never reported the alleged harassment and instead waited until her ex-fiancé revealed her affair with the GM.

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