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First Circuit Says Harassment Based on Failed Romance Can Violate Title VII

    Client Alerts
  • January 18, 2008

Last month, the First Circuit Court of Appeals decided a sexual harassment case involving a server/bartender at a Chili’s restaurant, who formerly dated the alleged harasser, a cook at the restaurant.  In Forrest v. Brinker Int’l Payroll Co., the court affirmed the district court’s grant of summary judgment for the employer.  However, in a decision that broke from the majority view of other federal appellate courts, the First Circuit reversed the lower court’s conclusion that the harasser’s actions did not constitute harassment under Title VII because they were based on the parties’ previous romantic relationship, and not on the plaintiff’s sex as required under Title VII.


The plaintiff dated her coworker for approximately one year.  When the plaintiff initially ended the relationship, she was threatened by four women in the restaurant’s parking lot whom she claimed acted at her former boyfriend’s instigation.  She reported this incident to management and did not experience another incident until she began dating another man.  Her former boyfriend frequently questioned the plaintiff about her new relationship at work, called her names such as “whore,” “slut” and other profanities, and refused to complete her orders in the kitchen.  She again complained about the cook’s behavior to management, and he was orally warned to “stop and behave as a professional.”  He continued this behavior for several weeks and management issued a final written warning.  Several weeks later, the plaintiff reported that he squirted her with hot water while she made a personal phone call, cornered her in a walk-in cooler, called her profane names, and told her she was fat and needed to go to the gym.  Management terminated the cook after he admitted calling the plaintiff fat.  The plaintiff resigned from her position shortly after the incident and sued the employer under Title VII.


The district court concluded that the plaintiff failed to offer sufficient evidence showing that the harassment was based on her sex as opposed to stemming from animosity resulting from the failed relationship.  This majority of circuit courts that have addressed this issue, including the Fourth Circuit (which includes North and South Carolina), have held that the type of behavior at issue in this case is not harassment under Title VII when the parties were involved in a previous personal relationship.  On appeal, the First Circuit rejected that notion, however, and concluded that in some circumstances, harassment directed at a former lover can be gender discrimination.  The court found little distinction between this case and harassment claims based upon attempts to begin a romantic relationship, where similar name-calling and derogatory behavior clearly can constitute harassment under Title VII.


The First Circuit held, however, that even though a reasonable jury could conclude that the cook’s behavior towards the plaintiff was based on her gender, “no reasonable jury could conclude that Chili’s response was not prompt and appropriate.”  The court found that given the circumstances, management’s progressive discipline of her co-worker, and ultimate termination when he failed to correct his behavior fulfilled its obligations under Title VII.  Management can be understandably reluctant to intervene in employees’ personal relationships.  However, when the effects of such failed relationships spill over into the workplace, the employer has an affirmative obligation to act and to make sure that one employee is not using the workplace to retaliate against the other based on the failed romance.