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Sex in the workplace – a “no-no”


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Helou

By Gina Helou

Background
The doctor worked for a physicians group which hired the nurse and assigned her as the doctor’s personal assistant.  During the doctor and nurse’s tenure, a medical center bought out the physician’s group.  The relationship ensued, but was eventually ended by the nurse when she realized the doctor never planned on leaving his wife.  The nurse’s workplace environment became uncomfortable, as the doctor continued to send her inappropriate text messages and engaged in unwanted physical contact at the workplace after she ended the affair.  The nurse filed an inner office complaint claiming she was feeling pressured to leave her position as the doctor’s assistant, despite her desire to continue working with him.  

During the investigation process, it came to light the two had engaged in several sexual encounters at the office.  After this discovery, the nurse and doctor were offered the option of resigning or facing termination.  The doctor resigned, but the nurse refused and was terminated by the medical center.  She then filed suit against both the doctor and the employer based on claims of sexual harassment under Title VII and state laws, and a claim for retaliatory discharge. 

Legal analysis
In order to establish a hostile work environment claim, the nurse had to show the doctor’s actions post-affair “created a work environment that a reasonable person would find objectively hostile.”  The court ruled the nurse could not provide evidence to support this theory.  Although the physical contact and the text messages may have been unwanted, unsolicited, and certainly inappropriate, it was not enough to convince the court the office became a place of “discriminatory intimidation or ridicule, nor was it physically threatening such that it would have unreasonably interfered with [the nurse’s] work performance.”  The court especially believed this because the nurse openly stated she wanted to continue working with the doctor despite the post-affair events between the two.  

Regarding the nurse’s retaliation claims, the court stated neither the doctor nor the medical center retaliated against the nurse based on her actions.  The court found the doctor provided “legitimate, non-discriminatory reasons” for the nurse’s termination, but more importantly, although the doctor was allegedly responsible for sexually harassing the nurse, he was not responsible for terminating her.  This relieved the doctor of liability.  As for the medical center, the court stated it also was not liable for retaliation because the nurse did not engage in protected activity with the medical center.  Although the nurse had registered an inner office complaint, the complaint was solely based on her concern for her future in her position as the doctor’s assistant.  It did not provide any information related to the nurse feeling sexually harassed in the workplace.  Her termination was in no way related to her filing a complaint, but rather to her inappropriate office conduct.

The take-away
This case could have turned down a different street had the employer treated the two individuals differently.  If, for example, the doctor’s position was not threatened, the nurse may have had a gender discrimination claim.  However, the guidance the Sixth Circuit provided here shows an employer can avoid costly Title VII and state sexual harassment and retaliation claims if it treats the two individuals at issue equally.  Both the doctor and the nurse were offered the same options: quit or get fired.  Further, this case also provides guidance on the proper way of handling inner office complaints.  Here, the employer acted appropriately, but the outcome could have been different if the nurse had revealed the inappropriate text messages and physical contact in the workplace when she filed her complaint.  It is important to handle these situations carefully and specifically, and to document every step of an inner office investigation.

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