Maybe not. In Illinois, where the case upon which this scenario is based arose, an individual under age 17 cannot consent to sexual intercourse under state law. In fact, the 25-year-old supervisor was criminally prosecuted and convicted of statutory rape for his role. As a result, the 7th Circuit Court of Appeals rejected arguments made by the employer that it was not liable for allegedly consensual sex that occurred outside the workplace. If state law says that the supervisor’s conduct is so egregious—criminal, even—that consent is no defense, the court reasoned, then the employer should not be able to avoid civil liability by the use of the same consent defense.

Look to state law. Courts—and employers—should look to the state's age of consent law to determine whether a minor could consent to the sexual activity involved. If not, then the act should not be considered consensual for purposes of the sexual harassment case either, the court suggested.

The court conceded, “We realize that as a consequence of our approach the protection that Title VII gives teenage employees will not be uniform throughout the country, since the age of consent is different in different states, though within a fairly narrow band. Uniformity would require federal courts either to specify an age at which American teenagers shall be deemed capable of consenting to sexual advances in the workplace or to determine the individual plaintiff’s maturity in each case. Neither of these alternatives is satisfactory; both in their different ways are arbitrary.”

Off-site conduct doesn’t shield employer. The teen’s relationship with her supervisor included one incident of sexual intercourse at his apartment, but the fact that the conduct took place outside the workplace did not shield the employer. "The sexual act need not be committed in the workplace to have consequences there,” the court noted, though, “at the very least the harassment must be an episode in a relationship that began and grew in the workplace.” In this case, the relationship began with flirtatious talk and erotic touching in the workplace and continued there for nine months before the employee and supervisor had sex. Important to the court’s decision was the fact that the supervisor had preyed on several other employees before her, sleeping with two other young women he supervised, one of whom also was a minor. These facts were sufficient for the court to let the case continue to trial.

However, despite holding that the employee’s “welcomeness” was not a defense to employer sexual harassment liability in this case, the 7th Circuit held that the 16-year-old’s conduct could be used by the employer as a means to reduce its damages responsibility at that stage in the litigation.