A newly hired Indiana janitor alleged that he was approached by his supervisor, who invited him to begin a sexual relationship with her. He consented for more than a year but then told her he had gotten married and wanted to end their affair. He later testified that his repeated rebuffs made her so angry that she got him fired.

What happened. “Maurice” joined Executive Management Services (EMS) in August 2002, to clean office buildings in Indianapolis. Fired in mid-January 2004, he sued for sexual harassment and retaliation. His story was that his boss had repeatedly called his house after he was married and continued to demand that he resume their sexual relationship. When he’d refused, he said, she had several times threatened to get him fired. And she did so, he testified, when he refused the final time.

His boss’s testimony before a jury in federal district court was quite different: She said she’d asked him to clean an additional building and he’d refused, so she had him fired for insubordination. Maurice never had the opportunity before he was terminated to tell any other manager his side of the story. The jury ruled against him on the sexual harassment charge, but for him on retaliatory discharge. EMS appealed to the 7th Circuit, which covers Illinois, Indiana, and Wisconsin.

What the court said. Appellate judges didn’t find it necessary to prove or disprove Maurice’s testimony. What they did have to decide was whether, in his refusals to his boss, he had ever charged sexual harassment or discrimination. He had told her, “We’re no good together” and “I’m not messing with you anymore.” What he never said, judges believed, was that what she was doing was illegal. They ruled that the first element of a civil rights charge of retaliation is that the plaintiff engaged in a protected activity, such as protesting illegal conduct. “Because Maurice has failed to establish that he had a good faith belief that he was being sexually harassed, EMS is entitled to judgment as a matter of law,” judges wrote. Tate v. EMS, U.S. Court of Appeals for the 7th Circuit, No. 07-2575 (10/10/08).

Point to remember: Judges noted that other circuits, such as the 8th (AR, IA, MN, MO, NE, ND, and SD), have ruled that simply rebuffing a superior’s sexual advances is protected conduct. They also wrote that there are no ‘magic words’ for showing a belief that conduct is illegal, but Maurice protested his boss’s behavior for purely personal reasons—to protect his marriage—not legal ones. If he’d ever suggested he would complain to her boss or the Equal Employment Opportunity Commission, he might have had a case.