A recent Iowa Court of Appeals decision, Tammy Marie Roche v. Davenport Cleaners, Inc., demonstrates the hurdles that a plaintiff must navigate in workplace harassment and hostile work environment claims. The employees in the Roche case had an on-again, off-again romantic relationship. Everything was fine when they were together. But when they were having difficulties in their relationship, the employees resorted to derogatory name-calling and even physical action against each other.
The plaintiff, Roche, was eventually fired after a physical altercation with the other employee during which she struck him first. She then brought a legal claim against her former employer, asserting that she's been subjected to a sexually hostile work environment and had been fired in retaliation for her complaints about that environment. After a trial the district court ruled against her on all of her claims. The trial court did so because it concluded that the harassment of Roche was not "unwelcome" because Roche invited and reciprocated the other employee's conduct. The district court also decided that the harassment was not based on a protected characteristic (sex), but was instead the result of Roche’s failed romantic relationship with the other employee. Finally, the district court found that Roche was fired for a legitimate, nondiscriminatory reason, not because she's complained about the hostile work environment.
Regarding whether the conduct against Roche was "unwelcome," the Iowa Court of Appeals observed that the conduct at issue must be "unwelcome" in that the plaintiff neither solicited it nor invited it and regarded the conduct as undesirable or offensive. Roche couldn't prove that the other employee's conduct was unwelcome because she reciprocated and even initiated the harassment. Since plaintiffs can't succeed with a harassment or hostile work environment claim when they participate in the conduct they're complaining about, Roche's sexual harassment claim failed on this ground.
As noted, there was also a question over whether the harassment was due to Roche's sex or because she was in a relationship with the other employee. This portion of the case doesn't make much sense to me. The district court ruled that the harassment was based on the failed relationship and was thus not actionable. The Court of Appeals had a little more difficulty with this part of the trial court's decision because it's not entirely accurate to say that harassment or a hostile work environment is excused merely because the victim is or was in a personal relationship with the other employee. The lesson from this case seems to be that using gender-specific derogatory words against a co-worker, which would normally create liability for harassment and a hostile work environment, is acceptable as long as the accused employee maintains that the words were simply uttered against the victim as a form of revenge for a failed relationship or something like that. The Iowa Court of Appeals said that "[w]hile it is true some of the words used by Vlahouis have female connotations, the words were spoken to Roche not because of her sex but as a result of the ending of the relationship between Roche and Vlahoulis." I'm not entirely sure that the Court of Appeals was correct on that one, and one appellate judge did file a dissenting opinion in which she noted that the nature of certain words is not changed merely because the employees were previously in a relationship.
Courts often have difficulty penalizing conduct that arises out of personal or consensual relationships, at least in the employment discrimination and wrongful termination context. Several cases have found that an employer does not engage in unlawful gender discrimination by discharging a female employee who is involved in a consensual relationship that has triggered personal jealousy. 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. Adverse employment action stemming from a consensual workplace relationship (absent sexual harassment) is not actionable.
The Iowa Court of Appeals also agreed with the trial court that Roche had failed to prove her retaliation/wrongful termination claim. The employer claimed that Roche was fired because she hit the other employee first during the incident that precipitated Roche's termination. The employer denied that its decision to fire her had anything to do with her internal complaints about the other employee's conduct. The Court of Appeals determined that Roche lacked evidence to disprove the employer's stated reason for firing her and its denials that her internal complaints had anything to do with that decision.
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