In order to constitute actionable sexual harassment under Title VII, the offensive conduct must be unwelcomed, meaning non-consensual. An employee who engages in a consensual affair with her supervisor cannot claim harassment absent evidence of coercion. However, once the affair ends, the legal rules change. If one party to the relationship uses the workplace to harass or coerce the other party into renewing the affair, or takes steps to punish them for ending the relationship, these activities can cross the line into harassment.

Last month in an unpublished opinion, the Sixth Circuit Court of Appeals set a high bar for such post-affair harassment complaints. In Stevens v. St. Elizabeth Med. Ctr., Inc., the plaintiff was a nurse who engaged in a consensual affair with the doctor with whom she worked. She broke off the affair when the doctor refused to seek a divorce from his wife, and alleged that he continuously called and texted her, and repeatedly tried to grab and kiss her in the workplace. After an investigation of her complaints, the doctor resigned, and the plaintiff was fired for having sex with the doctor in the office and discussing the relationship with patients. She sued, claiming sexual harassment and retaliation.

The Sixth Circuit affirmed dismissal of the complaint on summary judgment. The court concluded that the alleged post-affair behavior by the doctor, while clearly inappropriate, was not severe and pervasive enough to constitute a hostile working environment under Title VII. The court noted that the written communications were not vulgar, and that the remaining alleged activities did not unreasonably interfere with the plaintiff's work activities. The Sixth Circuit also noted the plaintiff's complaint asked that she be allowed to continue working with the doctor. The court also rejected the plaintiff's retaliation complaint, finding a lack of evidence that she was fired for her complaints about the doctor, who was forced to quit based on similar conduct.

In this opinion, the court appears to have little sympathy for an employee who engaged in a consensual affair and then complained about the consequences of such affair. In other cases, courts and juries have concluded that similar post-affair conduct is harassing, especially when it materially interferes with the employee's ability to do her work. Employers faced with such complaints should take them seriously, and not reject the contentions simply because there was a consensual relationship at some point in the past. Especially in situations that involve supervisor-subordinate relationships, the use or threat of use of that relationship to punish or reward the victim can result in direct legal liability for the employer.