In a Title VII Case, Can a Teenage Employee Consent to Sex With Her Supervisor? The Seventh Circuit Court of Appeals Says No
By JOANNA GROSSMAN
Tuesday, Aug. 29, 2006
Typically, a sexual harassment plaintiff must prove that her supervisor's advances were "unwelcome." But what if the supervisor had sex with the plaintiff when she was below the age of consent? Must his advances still have been unwelcome? Or in harassment law, as in the criminal law pertaining to statutory rape, is the underage person's attitude toward the sexual conduct irrelevant?
According to the U.S. Court of Appeals for the Seventh Circuit - addressing a claim under Title VII of the Civil Rights Act of 1964, a federal anti-discrimination law that prohibits workplace sexual harassment -- the answer is that an adult's advances to an underage teen need not be unwelcome in order to be actionable.
Under the law of the relevant state, Illinois, the plaintiff in that case was incapable of giving valid consent to sexual intercourse; she was 16 and Illinois' age of consent is 17 (or, in special circumstances, 18). Thus, the sex she had with her supervisor was a crime on his part: statutory rape. Based on this fact, the appeals panel - in an opinion written by noted judge Richard Posner - held that the plaintiff could win her case whether or not she could prove that her supervisor's advances were unwelcome.
This ruling thus creates, in effect, a special doctrine for below-the-age-of-consent teenagers who experience sexual harassment at work -- under which these teens can prove their cases even if they welcomed their supervisors' advances.
The Facts and Allegations of the Case Before the Court
The plaintiff in the case was known only as "Jane Doe" in court papers and the appellate opinion. The sixteen-year-old Jane worked at the ice cream shop, Oberweis Dairy, as a scooper. A twenty-five-year-old man named Matt Nayman was her shift supervisor.
According to Jane, Nayman created a hostile work environment for her and the other female scoopers.
For instance, some of the evidence indicated that Nayman regularly hit on the girls he supervised. One witness testified that he would grope and kiss the girls, as well as grab their butts. He also invited them to his apartment, and had sex with two other girls before turning to Jane. While Jane made no claim that Nayman forcibly raped her, Nayman was prosecuted, convicted, and imprisoned for statutory rape.
Subsequently, Jane sued her employer, alleging that Nayman harassed her. (She was not able to make a Title VII claim against Nayman directly because Title VII does not hold individuals liable for their harassing behavior - only their employers.)
The trial court, however, rejected Jane's claim because, in its view, she "welcomed" Nayman's advances. Because the appeals court applied Title VII doctrine differently, Jane can now pursue her case further, to settlement or trial. But there will be some more stumbling blocks, as I detail below.
The "Age of Consent"
Every state sets an "age of consent," at which individuals are deemed legally capable of consenting to sexual intercourse. It was historically a crime - "statutory" rape -- for an adult to have sex with a girl below that age, whether or not she in fact gave her consent. Today, all fifty states have gender-neutral laws that prohibit adults from having sexual intercourse with minor boys, as well as girls.
According to a 50-state survey by Charles Phipps, state laws on the "age of consent" vary with the age of the minor, the nature of the sexual activity, and the presence of any special circumstances, such as the adult's holding a position of trust with respect to the minor. These factors are all used as a proxy for gauging when a minor is least likely to be able to resist the sexual overtures of an adult.
Under Illinois law, here, it is clear that, at 16, Jane was under the state's age of consent regardless of the circumstances of the encounter at the time Nayman had sex with her.
Requirements for a Sexual Harassment Claim under Title VII
It is indisputable that Jane's age alone was sufficient to criminalize Nayman's behavior - since the statutory rape law makes a minor's consent legally irrelevant. But the Seventh Circuit had to answer a different, more difficult question: Of what relevance is her age - and the possibility that she "welcomed" the behavior -- under Title VII?
Courts have construed Title VII to ban two forms of sexual harassment: harassment resulting in a tangible employment action, and "hostile environment" harassment. "Hostile environment" harassment occurs when unwelcome conduct of a sexual nature is sufficiently severe or pervasive to create a hostile, offensive, or abusive work environment.
It was in its landmark 1986 opinion, Meritor Savings Bank v. Vinson, that the Supreme Court first acknowledged that "hostile environment" harassment is actionable under Title VII. Because the case involved a longstanding sexual relationship between a bank teller and her supervisor, the Court also directly considered the requirement that harassing conduct must be "unwelcome" in order to be actionable.
The sexual relationship in Meritor had for the most part been voluntary - that is, it did not involve forcible rape, though the power inequality involved was significant -- yet the Supreme Court still concluded it was "unwelcome" for sexual harassment purposes. The plaintiff, Mechelle Vinson, proved to the jury that she felt pressured by her supervisor, even in the absence of any direct threat, and engaged in the relationship in order to keep her job. This was sufficient, the Court held, to show "unwelcomeness," and its ruling made clear that acquiescing to and welcoming sexual conduct are not the same thing. Put another way, unhappily submitting to a supervisor's advances to keep one's job is hardly welcoming them.
But suppose Vinson had clearly given her true consent, genuinely welcomed the sexual attention of her supervisor, and had no fear at all of losing her job if she did not comply. In that event, her later claim of harassment would have failed, for she would not have been able to prove unwelcomeness. A power inequality alone, in other words, cannot transform sex into sexual harassment when both partners are above the age of consent and in fact consent.
The Question for the Seventh Circuit: Reconciling State and Federal Law
For the court in the Doe v. Oberweis case, then, one key question was how to reconcile the doctrinal requirement of unwelcomeness under federal sexual harassment law with the legal incapacity imposed by the state of Illinois on minors to consent to sex with adults.
The Seventh Circuit, as noted above, concluded that deferring to state law on the ability of a minor to consent was the better approach. "Federal courts," the court wrote, "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 of the state in which the plaintiff is employed."
One result of this ruling is that teenagers in different states will potentially have different rules applied to their claims of harassment, depending on the law in their workplace's state about age of consent, and depending on the relevance, under that law, of any other factors, such as age disparity or severity of the sexual conduct. As noted above, the lowest Illinois' age of consent gets is 17, meaning Jane Doe, at 16, was plainly under the requisite age. In other cases, the answer to whether the plaintiff was under the relevant state age of consent may be more complicated.
While this situation is not ideal, courts do routinely draw on state law to define terms that appear in federal statutes with any accompanying definition. (I wrote in an earlier column about this type of use of state law under Section 1981, a law banning race discrimination in the making and enforcement of private contracts.)
What This Ruling Means for Jane Doe: Instructions to the Trial Court
What will happen to Jane Doe now? She won on one issue: She can still prevail even if she welcomed Nayman's advances. But Judge Posner and the rest of the appellate panel did not hand her a slam dunk: The opinion raised other issues that may undermine her claim.
First, the ruling throws into question whether Nayman qualifies as a "supervisor" for Title VII purposes. The label is doctrinally important, since employers are strictly liable for harassment by supervisors (subject to an affirmative defense), but only liable in negligence for harassment by non-supervisors. In lay terms, what this means is that an employer can only be held liable for harassment by a co-worker only if the employer knew or should have known of the conduct and failed to stop it. The requirements for holding an employer liable for a supervisor's harassment are significantly less restrictive.
The opinion queries whether Nayman is really a supervisor, since he did not technically have the power to fire the plaintiff or other workers subordinate to him. Nevertheless, Nayman had real authority over Jane - he directed her work, was authorized to issue disciplinary write-ups, and, often, was the only one on site with any supervisory power at all. Though the Seventh Circuit panel stated that it would be "inclined" to deem Nayman a supervisor, it left the question open for the factfinder, at the trial court level.
The appeals court did direct, however, that, when it comes to the law the factfinder must follow, Nayman's authority must be used to elevate the standard of care, even under a negligence rule, if he cannot fairly be considered a supervisor. Things do not look promising for Oberweis, if it must try to prove that it met this elevated (or even an ordinary) standard of care. The appeals court remarked, tellingly, "No procedures were in force or utilized for protecting girls like the plaintiff from what happened to her, even though it should have been clear that the situation in the store as a result of Nayman's antics was explosive."
More on the Impact for Jane Doe: Consent Is Held Relevant to Damages
Oddly, though, while taking the employer to task for letting Nayman run amok, Judge Posner at the same time suggested that the victim's consent - even if legally irrelevant to the finding that actionable harassment occurred - might be relevant to the amount of damages the employer has to pay. In a strange reversal of sorts, the opinion, after expressly ruling that Jane's consent to the conduct was irrelevant to liability, then invites Oberweis to "put Nayman's conduct in perspective" for the jury choosing how high a damage award to give by showing, for example, whether Jane facilitated his behavior by "sneaking around behind her mother's - and her employer's - back".
Posner suggests that this approach is a "straightforward application" of the avoidable consequences theory - which says, loosely, that plaintiffs should not recover damages for harm they could have avoided. In fact, it is anything but.
It is hard to say at the same time that a teenage girl is too young to make good decisions about sex with adults, and yet that her "decision" to sleep with a shift supervisor at work minimizes the harm she suffered. (Factfinding on remand will be important to this issue -- since Jane claims that she was disturbed by his overtures, but did not feel free to resist them for fear of losing her first job.)
In addition, the distinction Posner tries to draw - between the relevance of consent to liability, versus its relevance to damages - is, at the end of the day, meaningless - at least in any practical sense. Nayman, recall, was punished through the criminal law. This suit is to hold the employer liable for its role in making the harassment of Jane possible. Yet, if Jane is able to prove she was the victim of unlawful harassment, but cannot prove that Oberweis should pay damages, then she has little to take home from court other than her pride. Similarly, a verdict of liability but no, or very low, damages, hardly provides any incentive for employers to police compliance with the law, and to ensure work environments less "explosive" than the one Judge Posner recognized existed at Oberweis.
In the end, the Seventh Circuit has granted Jane Doe her day in court, though it created some legal obstacles for her to surmount. More importantly, perhaps, this case has drawn attention to a common, but mostly overlooked harassment problem.
As law professor Jennifer Drobac has noted, harassment of adolescents is most common in the restaurant and entertainment industries, both of which rely heavily on untrained, part-time, young workers and strive to create a light, friendly atmosphere. Because of their age, inexperience, and expendability, these workers are at once most likely to be preyed upon, and least likely to know how to protect themselves from unwanted sexual attentions and abuse, or how to seek help once sexual harassment or abuse has occurred.
The ruling in Oberweis is thus right, as a matter of policy as well as a matter of law, to provide greater protection from harassment to adolescent workers. This vulnerable population deserves at least that much.