in all aspects of employment law for more than 40 years. Following 25 years as a name partner in his own firm, he is now Of Counsel to Ganfer & Shore, LLP, where he heads the firm's labor practice. He also has taught labor law for many years as an adjunct professor at the New York University School of Law and the University of Iowa School of Law. Taback, an associate of the firm, in the preparation of this article. 360 Lexington Avenue New York, New York 10017 212.922.9250 Phone 212.922.9335 Fax rgosseen@ganfershore.com www.ganfershore.com on the job and his or her subordinate (more often than not) terminates the relationship, regardless of how consensual it might have been, the supervisor's post-breakup conduct toward the subordinate, if obnoxious, harassing, petty or retaliatory, often leads to liability under Title VII of the Civil Rights Act of 1964. ("EEOC") and the courts have declared that sexual harassment violates Title VII. pro quo," in which "submission to or rejection of [unwelcome sexual] conduct by an individual is used as the basis for employment decisions affecting such individual," and "hostile environment," in which unwelcome sexual conduct "unreasonably interfer[es] with an individual's job performance" or creates working environment." there still is no "bright line" test for determining whether the supervisor's conduct is merely spiteful or violates Title VII. In one case, involving co-workers rather than a supervisor, affair gone awry," a married teacher broke off his relationship with a co- worker, who then made verbal threats, left notes on his car and embarrassed him in front of his students and other teachers. He filed a written complaint and the principal verbally reprimanded both teachers, instructing them to keep their personal problems out of the workplace. When the jilted teacher continued to harass him, the plaintiff sued under Title VII, alleging a sexually hostile the court found that the former lover's harassment, which "was motivated not by [plaintiff's] . . . male gender, but rather by [the jilted lover's] . . . contempt for [him] arises not out of the fact that plaintiff is male, but rather, out of [her] . . . contempt for [plaintiff] . . . following their failed relationship; [and that plaintiff's] . . . gender was merely coincidental." liability for their post-breakup behavior where there had once been a consensual sexual relationship. Subsequent decisions, however, have cast doubts on Succar's correctness, and today, most courts consider it "flawed," a Title VII violation based on evidence of unwelcome sexual conduct and harassment by a supervisor following the cessation of a sexual relationship. The trial judge stated that "to interpret such behavior not as gender discrimination, but rather as discrimination `on the basis of the failed interpersonal relationship' is ... [a] flawed . . . proposition under Title VII...". In another decision rejecting Succar, the Fifth Circuit affirmed a subordinate's post-breakup Title VII hostile work The Aftermath of a Failed Relationship |