Judge Rovner published an important dissenting opinion in Lord v. High Voltage Software, Inc., No. 13-3788 (7th Cir. 10/5/2016), in which the 7th Circuit affirmed the grant of summary judgment in favor of an employer in a same-sex sexual harassment and retaliation case. Judge Rovner dissented as to the majority decision affirming the grant of summary judgment on the retaliation claim, which essentially held that an employee cannot allege retaliation for reporting sexual harassment when the employer required him to report harassment immediately and he reported it only days later. In other words, if an employee fails to comply with employer-imposed reporting restrictions, the employer can terminate the employee for reporting the harassment with no recourse for the employee to Title VII retaliation protections. The holding, according to Judge Rovner, will encourage employers to establish unreasonable time and manner restrictions on the reporting of sexual harassment and place "handcuffs on Title VII retaliation claims, with the employers holding the keys."
This case is unusual because the employer conceded that it terminated the employee because he complained of sexual harassment. The employer claimed that its termination of the employee did not constitute unlawful retaliation because it fired the employee for "insubordination" for failing to adhere to its directive to report his complaints of harassment immediately. The actual timing of the reporting cannot be overlooked. The employee reported the harassment only 12 days after the first incident and 2 days after the latest incident. If an employer can justifiably terminate an employee for reporting harassment two days after it occurred instead of immediately, employers will avoid the anti-retaliation provisions of Title VII by setting up restrictive reporting requirements on the time and manner that an employee must report harassment. An employer could characterize a valid report of sexual harassment as a violation of its sexual harassment policy and terminate the employee on that basis without liability for retaliation. This would amount to a "profound and dangerous step that would severely undermine the protections of Title VII" and restrict the ability of an employee to report harassment, which would have a chilling effect on the reporting of harassment.
Moreover, employees often wait to report workplace harassment for a variety of legitimate reasons. Under a workplace policy requiring immediate reporting, employees who wait for valid reasons or fail to recognize and report harassment immediately will encounter a legal "Catch 22" of either still reporting the harassment, but with the risk of termination for "late" reporting, without recourse under Title VII, or not reporting it at all, with the risk of continued harassment. The majority decision would effectively eliminate retaliation claims where the harassment occurs over a period of time (as it often does) and is not recognized as such with the first incident of harassment (which is also common). By failing to report the first incident immediately, the employee would be in violation of the employer's policy, "and could be fired with impunity for that infraction if the employee later chose to report that pattern of adverse conduct."
Judge Rovner also took issue with the majority's other basis for rejecting the retaliation claim--that the employee's complaints about his coworker's conduct did not amount to protected activity, because they did not concern the type of conduct that Title VII prohibits. The type of activity at issue is well-established as an activity which supports a claim of sexual harassment. The coworker allegedly poked the employee in the buttocks, slapped his buttocks, and grabbed him in between his legs and buttocks. Each time, the employee objected and told the coworker to stop, but the coworker repeatedly told him that he "liked it." Unwanted physical contact is a form of severe sexual harassment prohibited by Title VII. The fact that the harasser is the same sex as the victim makes no difference. Unwanted sexual conduct by a person of the same gender is still sexual harassment. The alleged repeated unwanted touching, that was sexual in nature and accompanied by sexually-charged comments, raises the possibility that the conduct was motivated by sexual attraction based on the employee's gender. Thus, the employee's complaints constituted protected activity because they concerned the type of activity that supports a charge of sexual harassment, and the employee was not without grounds for believing that the coworker's actions violated Title VII. An employee may still have a valid retaliation claim even if he does not prevail on his sexual harassment claim, as long as his internal complaints to the employer were not completely groundless. To hold that an employee who is subjected to such conduct is completely groundless in believing that it constituted sexual harassment would create an "extra ordinary burden" that should be rejected because it will "fundamentally undermine the Title VII protections against retaliation."
Judge Rovner found even more troubling the two holdings of the majority in conjunction with one another. By requiring an employee to present evidence of an improper motivation of the harasser for a retaliation claim, while holding that the failure to complain immediately constitutes non-retaliatory grounds for termination, the majority "eviscerates the protection against retaliation in Title VII." The employee must report the harassment immediately to retain the protection against retaliatory termination, but if the employee reports the harassment without first obtaining evidence of the harasser's unlawful motivation--which is often difficult and takes time--then the protection against retaliation is lost because the complaint will not count as protected activity. And "[t]hose competing requirements will swallow the protection against retaliation for countless plaintiffs."