That lyric comes from “Ain’t No Crime,” track 3 on Billy Joel’s 1973 album Piano Man. It was his second studio album (after 1971’s Cold Spring Harbor). The title track got all the press (peaking at number 25 on Billboard’s Hot 100) and started Joel on the path to stardom. “Ain’t No Crime” tells the story of navigating a tumultuous relationship, with too much drinkin’, coming home stinkin’, and falling asleep on the floor. It got no airplay.
That’s where today’s story begins. Considering the case of “a workplace romance” gone sideways in Nixon v. Kysela Pere et Fils, LTD, 2024 U.S. App. LEXIS 19621 (4th Cir. 2024) (unpublished), the Fourth Circuit returned the case to the trial court to address the allegations of quid pro quo sexual harassment.
A brief refresher course on harassment. There are two types: (1) hostile work environment (HWE); and (2) what used to be known as quid pro quo (Latin for “this for that”). The Supreme Court backed off using the Latin in 1998 and refers to this type of harassment as instead involving “tangible employment actions” (TEA).
But the Fourth Circuit used quid pro quo here, and so will we. While HWE claims can arise with any protected classification, quid pro quo cases are nearly always sex or gender based.
The typical quid pro quo case involves the exchange of sexual favors for a job benefit or, to flip it, the loss of a job benefit for refusing to provide such favors. Most folks today know this is not “other duties as assigned” on a job description. It’s legally, morally, and ethically wrong.
At the same time, workplace romances do occur. When the engagement is mutual and consensual that’s (usually) fine. The important word here is “unwelcome.” As in when the conduct is unwelcome, that’s a very real problem.
The appellate court told the tale this way, reminding the reader that since the case was decided on summary judgment all reasonable inferences should be viewed from the plaintiff’s eye.
“In 2013, Teresa Nixon and Francis Kysela initiated an affair. At that point, they were not yet colleagues, only lovers. Their relationship, at times, was amorous. . . . But it was also troubling.”
“Their six years together were volatile, to say the least. Nixon estimates they separated and reconciled more than 20 times. And to complicate matters, over a year into their affair, Kysela hired Nixon as a sales representative at his wine and spirits distribution company, KPF.”
Their professional relationship was no different from the personal one. They’d fight; he’d fire her. They’d get back together; he’d rehire her. But, at that point, it seems it was all consensual. That said, it still sounds exhausting.
In mid-2019, Kysela rehired Nixon with a three year employment agreement. They swore off the romance. Well, sort of. In September the relationship “rekindled” a couple of times.
This is where the facts become disputed. Kysela went off on a business trip to Europe. While he was away, Nixon decided she was really done with the personal aspect of their relationship. On September 23, while on travel, Kysela asked to meet with Nixon upon his return – that coming Sunday evening – “to discuss business.” This request, the court tells us, “was typical from Kysela, and his intention ‘was normally to fulfill his sexual needs.’”
Nixon instead suggested a Sunday phone call or a Monday meeting. Email exchanges followed, with Nixon telling Kysela the personal relationship was over. On the Sunday evening phone call she “ended the relationship once and for all.”
By now you will have guessed the result: “Kysela responded, ‘you will need to transition out of the company.’” And transition she did. Nixon’s last day of work was October 31, 2019.
Nixon sued for HWE and quid pro quo harassment, as well as the breach of her employment agreement. The district court granted summary judgment in favor of KPF. Reviewing this (sordid) record, the Fourth Circuit agreed there was no HWE, but returned the case to the district court to address the quid pro quo and contract claims.
The court noted that there were disputes of fact about exactly when the personal relationship ended: was it before or after Kysela asked to meet with Nixon in person that Sunday evening to “discuss business?” After she refused to do so, Nixon was “transitioned” out of her job. It sounds plausibly like a connection between “this” and “that” might have existed. And that does indeed get one a trial.
The Fourth Circuit recognized this was a close case. “If this case came to us after a bench trial,” said the court, “our conclusion might be different.” But a trial permits the fact-finder to (wait for it) find facts after assessing witness credibility. That’s not what happens on summary judgment where the standard is (put colloquially) “even if everything she says is true, the other side still wins.”
The take-away here? Do I really need to tell you? Let’s put it this way: actions have consequences, some intended, some unintended. And some . . . expensive.