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.
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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