The Seventh Circuit in Tate v. Executive Management Services, Inc. faced the issue of whether an employee who rebuffs his supervisor's sexual advances engaged in the kind of opposition to an unlawful employment practice protected by Title VII's retaliation provision. The retaliation provision requires that an employee oppose any unlawful employment practice but does not define "oppose." The Eighth Circuit has held that an employee engages "the most basic form of protected activity" by rebuffing a supervisor's sexual advances. The Fifth Circuit, on the other hand, has found that an express rejection of a supervisor’s sexual advances does not qualify as opposition activity. The Seventh Circuit in Tate acknowledged the circuit split, declined to decide the issue, and decided the case on other grounds.
The result of the Seventh Circuit's decision in Tate, however, is that an employee who was given an ultimatum by his supervisor to choose between sex and his job, and was fired when he refused to sleep with his supervisor, was not protected under Title VII's retaliation clause. This Comment explores this issue by examining the language of Title VII's retaliation provision, the Supreme Court's recent interpretation of the meaning of "oppose" in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., the purposes behind the retaliation clause, and the practical implications of this issue. This Comment concludes that in most circumstances, an employee who rebuffs a supervisor's sexual advances has opposed an unlawful employment practice and that by disregarding these concerns, the court's result in Tate was incorrect.
Joshua I. Grant,
Supervisors, Sex, and the Seventh Circuit: No Should Always Mean No,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol4/iss2/4