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David F. OLeary TO: Clients, Friends and Colleagues FROM: David F. OLeary Periodically, I write a brief essay on an employment law issue which interests me and I hope interests you. The emphasis is on providing practical advice. Please do not hesitate to contact me if you have any questions or comments. EMPLOYMENT LAW NOTE #9 EMPLOYERS LOSE DEFENSE IN SEXUAL HARASSMENT CASES INVOLVING EMPLOYEES UNDER 16 YEARS OF AGE. JUDGE POSNER STRIKES AGAIN. (SEPTEMBER 2006) Astute employers know that supervisors should not have sexual relationships with subordinate employees. Regardless of whether the relationship is consensual and welcomed, the consequence for the employer can be negative, undermining the morale of other employees, as well as creating the occasion for litigation if the relationship deteriorates. In sexual harassment cases involving a supervisor accused of harassment by a subordinate employee, frequently there is a dispute as to whether an admitted sexual relationship was welcomed or consented to by the subordinate employee. The resolution of this dispute can often determine whether the employer will be held liable for sexual harassment. In a recent sexual harassment case, Doe v. Oberweiss Dairy, 98 FEP Cases 1022 (7th Cir. 7/28/06), a panel of the 7th Circuit Court of Appeals in Chicago held that employees below the age of consent (the age of consent in Pennsylvania is 16) cannot be deemed to have consented or welcomed sexual intercourse with an adult supervisor regardless of the facts. In other words, as a matter of law, courts in the 7th Circuit must find that sexual intercourse between an adult supervisor and a subordinate employee under the age of consent was unwelcomed and not consented to by the adolescent. Judge Richard A. Posner, who is the most influential Federal Judge sitting today, wrote the opinion for the Court. He reasoned that just as an adult in a criminal trial for statutory rape cannot claim consent (as a defense) with respect to having sexual intercourse with an adolescent younger than sixteen years of age, the same adult (and his employer) in a civil trial for sexual harassment cannot claim consent (as a defense) with respect to having sexual intercourse with an adolescent employee who is less than sixteen years of age. As a practical matter, this means that in Federal courts in states under the jurisdiction of the 7th Circuit, an employer likely will be deemed liable for sexual harassment if an adult supervisor has sexual intercourse with an adolescent employee under the age of sixteen. Judge Posner added, however, that whether or not a sexual relationship between an adult supervisor and adolescent employee under the age of consent is consensual is relevant in determining the amount of damages the adolescent employee might be entitled to receive. Pennsylvania is not in the 7th Circuit. It is in the 3rd Circuit, but the influence of Judge Posner is immense. His opinions, which are cited as authority by courts across the United States, are always compellingly written, and his analysis, razor sharp. This decision is relevant to businesses with fourteen and fifteen-year-old employees, businesses with older adolescent employees who are supervised closely by adults (particularly adolescent females who are supervised by adult males), and businesses with employees (regardless of age) who have diminished mental capacities.
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