"I was the one who was sexually harassed, and now you are firing me?" said employee Jane Lemon. "That's illegal!"

"You were fired for violating the policy against adulterous relationships," replied the director of human resources.

In Embry v. Integrity International Sec. Servs. Inc., S.D. Miss., No. 08-191, decided May 12, 2009, the U.S. District Court for the Southern District of Mississippi held that Lemon can proceed with her claim of retaliatory firing in violation of Title VII, having shown that her former employer's reason for firing her - allegations of misconduct - could have been pretextual.

Lemon worked for a firm as a security guard. The firm had a contract to provide security for the U.S. Army Corps of Engineers. She and a Corps supervisor began a consensual sexual relationship that lasted more than three years. They were both married to other people when the affair began and did not reveal their sexual relationship to anyone at the company. After the relationship ended, the employee began dating another Corps employee.

That Corps supervisor later suggested that the firm investigate whether the employee had tipped off her new boyfriend about a drug search of his boat.

The employee denied the accusation and claimed that the supervisor had implicated her in retaliation for ending their relationship. She also reported to the firm that the supervisor had been sexually harassing her.

The firm placed the employee on administrative leave pending its investigation of her harassment claims, then fired her for violating Corps regulations prohibiting a contractor's workers from engaging in acts of sexual misconduct, including adultery.

The district court said the firm wrongly relied on the consensual nature of the employee's relationship in arguing that her harassment report was not an activity protected under Title VII. The employee needed to show only that she had a reasonable belief that the actions reported were unlawful employment practices in order to qualify for protection under the "opposition clause" of the act, the judges ruled.

The court held that the employee demonstrated sufficient evidence of a connection between her harassment report and her firing to establish a retaliation claim, even though the Corps supervisor was not an employee of the contractor and did not have direct control over her employment.

Rumors of the employee's adulterous affair with the supervisor were widespread among employees at the firm and the Corps, the court said, yet prior to the harassment report, the company had never investigated these rumors.

This writer also finds it curious that the Corps policy prohibiting acts of sexual misconduct, including adultery, only applied to the employee and not the supervisor.

Rather than banning romantic relationships in the workplace, some employers have used "love contracts" or consensual-relationship policies in which both parties attest to the voluntary nature of the relationship and promise to inform management if one or both parties decide that the relationship should end. In some cases, these agreements also can document measures the parties have taken to avoid favoritism and unprofessional behavior.

Lindy Korn is a Buffalo lawyer with a solo practice and is CEO of Diversity Training-Workplace Solutions Inc. She can be reached at lkorn@diversitytraining.com.