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Labor and Employment

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Sexual Harassment: No More "Welcomeness" Defense Against Minors

By Eugene K. Hollander

A recent seventh circuit case eliminates the defense that a sexual harassment plaintiff welcomed the sexual contact when the victim is under the age of consent.

In defending sexual harassment cases, employers often assert several substantive defenses. For example, an employer may contend that the conduct alleged by the plaintiff is not severe or pervasive enough to constitute harassment, or that the plaintiff welcomed the conduct of the alleged harasser.

In the latter situation, if the district court rules on a motion for summary judgment or the jury concludes that the plaintiff welcomed the harasser's advances, the employer wins.¹ And when welcomeness is asserted as an affirmative defense, the plaintiff's counsel can be in the uncomfortable position of having to defend a client's sexual banter or other suggestive behavior.

In Doe v Oberweis Dairy,² the seventh circuit court of appeals reversed a ruling by the district court granting summary judgment to the employer in a sexual harassment case involving a minor plaintiff. This article reviews the Doe case and discusses its impact on the welcomeness defense in sexual harassment claims involving minor plaintiffs.

Background

Substantive defenses to sexual harassment. An employer may defend a sexual harassment case on a substantive level in one of two different ways. First, it may argue that the conduct alleged by the plaintiff does not rise to the level of sexual harassment, either objectively or subjectively or both. To succeed, a plaintiff must prove that the complained of conduct was offensive to a reasonable person and to her specifically. Alternatively, the defendant may argue that the plaintiff welcomed the harasser's advances.

Statutory rape under the Illinois Criminal Code. Illinois has criminalized four types of sexual offenses: criminal sexual abuse,³ aggravated criminal sexual abuse,⁴ criminal sexual assault,⁵ and aggravated criminal sexual assault.⁶ While the statutes and sentences differ depending upon the ages of the offender, victim, and the type of conduct involved, all four categories provide for criminal sanctions where no force is involved but the victim is a minor, a situation commonly referred to as "statutory rape." A defendant may be convicted of misdemeanor criminal sexual abuse if he is 17 or older and has consensual sexual intercourse with a victim who is no more than 16 years and 364 days old.⁷

The Doe facts and district court opinion

Plaintiff Doe, a high school student who was legally under the age of consent for sex, was hired at Oberweis Dairy as a part-time ice cream scooper in Bartlett. She worked with her shift supervisor at the store between December 2001 and August 2002.

The supervisor squeezed Doe's arm above the elbow five or six times and asked her how she was doing. He then began hugging her on the job. In February or March 2002, he told her she was pretty and that he did not understand why she did not have a boyfriend.

Beginning in May 2002, Doe began visiting her supervisor at his apartment, where they engaged in sexual intercourse on one occasion. The supervisor was ultimately prosecuted, convicted of criminal sexual abuse, and imprisoned.

Doe brought suit under Title VII for sexual harassment against Oberweis Dairy, and also alleged pendent state law claims for negligent hiring, training and supervision, and assault and battery. The defendant filed a motion for summary judgment, arguing that Doe failed to exhaust her administrative remedies. It further argued that her claim had no merit because her relationship with the supervisor, including the one act of sexual intercourse, was voluntary, occurred outside the workplace, and was not so offensive as to constitute sexual harassment.

The district court granted the defendant summary judgment.⁸ In analyzing whether plaintiff's claim was sexually hostile on a substantive basis, the court held that the plaintiff welcomed the supervisor's advances.⁹ The court found that Doe voluntarily visited her supervisor's apartment, asked him to wear a condom, and interacted with him socially after their encounter.

The court also concluded that these actions did not involve her employment¹⁰ and that the harassment was not severe or pervasive, since the supervisor "only touched Plaintiff [at work] on fifteen occasions"¹¹ and she found the allegedly harassing remarks "flattering." The court relinquished jurisdiction of plaintiff's state law claims.

The seventh circuit opinion

On review, the seventh circuit noted that while no forcible rape occurred, the supervisor was guilty of statutory rape under the Illinois criminal code. The court also noted that he was nine years older than Doe when they had sex.

In determining whether Doe could consent to the conduct for purposes of Title VII, the court reasoned that "'[t]he age of consent fixed by a state represents a legislative judgment about the maturity of girls in matters of sex.'"¹² The court noted that by deferring the state legislature it could avoid 1) reclassifying consensual sexual conduct that the state had determined was noncon-sensual, 2) complicating employment discrimination litigation, and 3) making difficult inquiries into a plaintiff's maturity.¹³

The court held that federal courts, "rather than deciding whether a particular Title VII minor plaintiff was capable of 'welcoming' the sexual advances of an older man, should defer to the judgment of average maturity in sexual matters that is reflected in the age of consent in the state in which the plaintiff is employed. That age of consent should thus be the rule of decision in Title VII cases."¹⁴

The court recognized one inherent difficulty in this approach - lack of uniformity due to the varying state law statutes governing consent. Though most state statutes defining consent are within a fairly narrow band, a minor plaintiff may avail herself of the protections of Title VII, for instance, in Illinois, while the same minor plaintiff in another state would not be protected.

The court observed, however, that the other alternatives - having the federal courts specify an age of consent, or determining consent in each case - were unworkable. Deferring to the states helped avoid arbitrary decisions and respected the differences among the states in determining the maturity of teenagers in sexual matters.¹⁵ Thus, the court concluded, a defendant cannot as a matter of law raise the defense of welcomeness in a Title VII sexual harassment suit by a minor plaintiff when the conduct alleged to constitute sexual harassment occurred.¹⁶

The court was quick to caution, however, that the minor plaintiff's conduct was not per se inadmissible. It still may be relevant to assessing damages.

Analogizing the case to a tort claim with principles of comparative fault,¹⁷ the court held that the employer should be permitted to put a supervisor's conduct in perspective for purposes of determining damages only. As the court noted, "if Doe was sneaking around behind her mother's - and her employer's - back and thus facilitating [the supervisor's] behavior, the employer may be able to show that the harm she suffered [at the employer's hand]...was minimal."¹⁸

Another important observation the court made was that the sexual act need not take place in the workplace - it is sufficient if the act has consequences there.¹⁹ The only caveat to that principal is that the harassment must begin and grow in the workplace.²⁰

Thus, according to the court, had the plaintiff met the supervisor on the last day of her employment and the relationship later culminated in sexual intercourse, the connection to the workplace would be too attenuated to constitute sexual harassment.²¹ But as the court remarked, the relationship in the case at bar began with flirtatious talk and erotic touching in the workplace and continued for nine months before the plaintiff and supervisor had sex. The plaintiff also continued to work under the supervisor for two weeks following the statutory rape.

The court concluded that since the plaintiff could not consent to have sex with the supervisor as a matter of law, plaintiff was subjected to nonconsensual sex during, as well as arising from, the employment relation.²² Accordingly, the case withstood a motion for summary judgment.

The court then analyzed the facts in light of Burlington Industries, Inc v Ellerth²³ to determine whether the employer could be held liable. If the harasser were a supervisor, the employer would be held strictly liable. If, on the other hand, he was a coworker, the employer would be liable only if it failed to have and enforce a reasonable policy for preventing harassment, or in short, only if it was negligent in failing to protect the plaintiff from predatory coworkers.²⁴

The court noted that in this case, Doe's harasser had supervisory responsibility over scoopers - he could direct and discipline them - but had no authority to fire them.²⁵ It was a jury question whether he was a "supervisor." The district court thus erred when it granted summary judgment in favor of the employer.²⁶

Post-Doe practice pointers

Thanks to Doe, plaintiff's attorneys representing minors have a powerful weapon against employers. If the minor plaintiff can establish that the alleged conduct was severe and pervasive and that the harasser was a supervisor, she can recover for the harassment even if she consented. Depending upon the facts of the case, minor plaintiffs may be able to bring a motion for partial summary judgment on liability.

If the case proceeds to trial, the plaintiff may try moving in limine to exclude any evidence concerning welcomeness. However, because consent may be relevant to damages after Doe, a motion in limine may be unsuccessful. Nonetheless, the plaintiff might be able to get a jury instruction advising the jury that plaintiff's consent should not be considered for liability.

Note that while defense attorneys cannot use the welcomeness defense as a matter of law, they might be able to cross-examine plaintiff at trial to reduce plaintiff's damages. However, depending upon the age of the minor plaintiff, defense counsel will have to tread lightly to avoid offending the jury.

1. Harris v Forklift Systems, Inc, 510 US 17, 21-22 (1993).
2. 456 F3d 704 (7th Cir 2006).
3. 720 ILCS 5/12-15.
4. 720 ILCS 5/12-16.
5. 720 ILCS 5/12-13.
6. 720 ILCS 5/12-14.
7. 720 ILCS 5/12-15(c), (d).
8. As a threshold finding, the district court concluded that plaintiff failed to exhaust her administrative remedies as she did not cooperate with the EEOC. Doe v Oberweis Dairy, 2005 WL 782709, *3-4 (ND Ill).
9. Id at *6.
10. Id.
11. Id at *7.
12. Doe, 456 F3d at 713, quoting Beul v ASSE International, Inc, 233 F3d 441, 450 (7th Cir 2000).
13. Doe, 456 F3d at 713.
14. Id.
15. Id at 714.
16. Id.
17. See Beul, 233 F3d at 450-51; Morris v Yogi Bear's Jellystone Park Camp Resort, 539 So2d 70, 76-78 (La App 1989); Robinson v Roberts, 205 Ga App 645, 423 SE2d 17 (Ga App 1992). 18. Doe, 456 F3d at 715.
19. Id.
20. Id. See Meritor Savings Bank, FSB v Vinson, 477 US 57 (1986).
21. Doe, 456 F3d at 716.
22. Id.
23. 524 US 742, 760-765 (1998).
24. Doe, 456 F3d at 716.
25. "He was either an elevated coworker or a diminished supervisor." Id at 717.
26. Id at 718.