Title VII Retaliation After a Sexual-Assault Report: Sixth Circuit Requires Proof of a Reasonable, Good‑Faith Belief in Nonconsent; Intrinsic Consent Evidence Not Barred by Rule 412

Introduction

This precedential Sixth Circuit decision addresses how Title VII’s retaliation provision applies when an employee is fired after reporting a sexual assault at work. The central question: what must a plaintiff prove about her belief when she reports rape as unlawful conduct under Title VII’s opposition clause? The court holds that a plaintiff need not prove the assault actually occurred, but she must prove she reasonably and in good faith believed she was subjected to nonconsensual conduct prohibited by Title VII. Closely tied to that holding is an important evidentiary ruling: consent evidence that is intrinsic to the alleged incident is not “other sexual behavior” under Federal Rule of Evidence 412 and may be admitted for the narrow, non‑propensity purpose of evaluating the plaintiff’s reasonable, good‑faith belief.

The plaintiff, Samantha Graf, a Certified Nursing Assistant Technician at Morristown‑Hamblen Hospital Association (MHHA), reported that a security guard, Thomas Ogle (employed by an outside security firm), raped her during a break on hospital premises. After a limited HR review, MHHA concluded the encounter was consensual and terminated Graf for engaging in sexual conduct while on the clock and in an unauthorized area. Graf sued under Title VII and Tennessee’s THRA, along with tort claims. At trial only retaliation (Title VII/THRA) and negligent infliction of emotional distress remained. A jury found for MHHA. On appeal, Graf argued (1) the trial court wrongly required her to prove nonconsent as part of her retaliation claim, and (2) the court erred in admitting sexual‑history evidence in violation of Rule 412.

The Sixth Circuit affirms, clarifying both the scope of Title VII’s “reasonable and good‑faith belief” requirement in retaliation cases premised on sexual assault and the careful, limited role of consent evidence under Rule 412 in such cases.

Summary of the Opinion

• Title VII retaliation (opposition clause) requires that the employee’s report be made with a reasonable and good‑faith belief that the opposed conduct violated Title VII. In the context of a rape report, the plaintiff must prove she reasonably and in good faith believed the encounter was nonconsensual (i.e., a rape) when she reported it. She need not prove that rape actually occurred.
• Evidence that is intrinsic to the alleged sexual misconduct—such as the parties’ communications and exchanges bearing on consent to the challenged encounter—does not constitute “other sexual behavior” within Rule 412(a)(1). When offered strictly to assess the complainant’s reasonable, good‑faith belief about nonconsent to the incident at issue, such evidence is outside Rule 412’s bar.
• However, Rule 412 still precludes propensity or predisposition uses. Evidence of the complainant’s sexual behavior with others, her general sexual preferences, or reputation is either inadmissible or admissible only (in civil cases) under Rule 412(b)(2)’s heightened balancing, and reputation evidence is admissible only if the victim places it in controversy.
• The district court properly limited the evidence to Graf’s interactions with Ogle and excluded broader sexual‑history evidence. The court issued limiting instructions and barred reputation/predisposition uses. No abuse of discretion occurred.
• Verdict for MHHA affirmed; the Sixth Circuit offers a cautionary framework to trial courts: consent evidence must be narrowly tailored to the complainant’s own belief about the specific incident; third‑party disbelief and propensity evidence are irrelevant and inadmissible under Rule 412.

Detailed Analysis

Precedents Cited and Their Influence

The court’s reasoning is grounded in a line of Sixth Circuit cases interpreting Title VII’s retaliation provision:

• Booker v. Brown & Williamson Tobacco Co. (6th Cir. 1989) established that opposition conduct is protected if the complainant has a good‑faith belief that the opposed practice is unlawful. The Sixth Circuit emphasizes that “lawfulness” has been broadly construed.
• Johnson v. University of Cincinnati (6th Cir. 2000) and Wasek v. Arrow Energy Services (6th Cir. 2012) clarified that the belief must be both reasonable and in good faith, and that actual unlawfulness need not be proven. Wasek also recognizes two ways the standard can fail: an unreasonable mistake of law or a lack of facts from which a violation could reasonably be believed.
• Yazdian v. ConMed Endoscopic Techs. (6th Cir. 2015) and Braun v. Ultimate Jetcharters (6th Cir. 2016) reiterated that the operative question is the objective reasonableness and subjective good faith of the belief, not whether the conduct was actually unlawful.
• Montell v. Diversified Clinical Services (6th Cir. 2014) applied this standard to alleged sexual harassment; because the supervisor’s comments were sexual and directed at the plaintiff, she could reasonably and in good faith believe she was reporting unlawful harassment.
• Moore v. Coca-Cola Bottling Co. Consol. (6th Cir. 2024) and Laster v. City of Kalamazoo (6th Cir. 2014) recite the familiar four‑part prima facie test for retaliation claims; here, the dispute turns on the first element—protected opposition activity.
• On false or fabricated reports, the Sixth Circuit notes it has not explicitly so held, but cites consistent rulings from sister circuits that knowingly false, fabricated, or malicious complaints are not protected opposition (Fourth, Fifth, Seventh, Eighth, and Eleventh Circuits). This underscores the good‑faith component.

On Rule 412, the court relies on the rule’s text, Advisory Committee Notes, and persuasive authority (e.g., Warren v. Prejean, 8th Cir.), emphasizing the term “other” in “other sexual behavior” and the concept of evidence “intrinsic” to the alleged misconduct.

Legal Reasoning: Retaliation and the “Reasonable, Good‑Faith Belief” in Nonconsent

The court draws a careful distinction at the heart of Title VII retaliation doctrine:

• A retaliation plaintiff does not have to prove the underlying conduct she opposed was actually unlawful. This is a settled principle.
• But to satisfy the “protected activity” element under the opposition clause, she does have to prove that she had an objectively reasonable and subjectively good‑faith belief that the conduct she opposed was unlawful.

Applied to a workplace sexual‑assault report, this means the plaintiff must show she reasonably and in good faith believed the incident was nonconsensual sexual conduct prohibited by Title VII when she reported it. Graf argued that rape is plainly unlawful under Title VII and therefore her belief needn’t be scrutinized. The court rejects that framing: it is not whether a rape (as a legal matter) violates Title VII—of course it does—but whether the plaintiff reasonably and in good faith believed the specific incident she reported was a rape (i.e., nonconsensual), given the facts known to her at the time.

This approach is consistent with Wasek and Montell: plaintiffs need not win the “merits” of their underlying harassment claim to win their retaliation claim, but they do need to clear the reasonableness/good‑faith threshold. Here, because consent was the disputed factual hinge of the reported incident, the jury permissibly focused on whether Graf reasonably and in good faith believed she had not consented. The court also notes that Graf did not challenge the jury instructions or verdict form, both of which embodied the reasonable/good‑faith standard, thereby forfeiting that issue.

Evidentiary Holdings: Rule 412 and “Intrinsic” Consent Evidence

Rule 412(a) generally bars evidence of a victim’s “other sexual behavior” and “sexual predisposition” in cases involving alleged sexual misconduct. But the Sixth Circuit makes two key clarifications for civil Title VII retaliation trials arising from a reported sexual assault:

• Intrinsic consent evidence is not “other sexual behavior” under Rule 412(a)(1). The court stresses the textual word “other” and the Advisory Committee Note on “intrinsic” evidence. Evidence that directly concerns the alleged incident—such as contemporaneous communications between complainant and accused, explicit photos the complainant sent to the accused, and discussion of sexual practices relevant to the specific encounter—may be admissible to show whether the complainant reasonably and in good faith believed the incident was nonconsensual. It is not barred as “other sexual behavior.”
• No propensity or predisposition uses. Even when intrinsic evidence is admissible, it cannot be used to argue that the complainant has a general sexual predisposition (e.g., because she identifies with a BDSM lifestyle or generally considers herself “submissive,” she was more likely to consent). Propensity reasoning is squarely prohibited under Rule 412. The district court properly issued limiting instructions and confined the evidence to non‑propensity, consent‑related purposes.

Conversely, broader sexual history or predisposition evidence—communications with others, general reputation—remains inadmissible absent the strict Rule 412(b)(2) civil balancing (probative value must substantially outweigh danger of harm and unfair prejudice; reputation only if the victim places it in controversy). The district court applied this rigorously:

• Admitted: Graf’s communications with Ogle (including explicit photos) as intrinsic to the incident, for the limited purpose of consent/reasonable‑belief. The court excluded explicit videos themselves (admitting only basic facts of their existence) to mitigate prejudice.
• Excluded: Graf’s private sexual communications or predisposition evidence involving others. The hospital was barred from using such evidence to suggest general sexual proclivities or to argue propensity.

The appellate court endorses a narrow evidentiary gateway: defendants may rebut the reasonable‑and‑good‑faith element with consent evidence tied to the incident and the plaintiff’s own belief, but they may not:

• Offer evidence that others disbelieved the complainant’s account; such third‑party disbelief is irrelevant to the complainant’s own reasonable, good‑faith belief.
• Offer sexual history with other partners or occasions to imply propensity to consent.
• Trade on reputation or sexual predisposition themes, unless the stringent Rule 412(b)(2) test is met (and even then, reputation is admissible only if the complainant puts it in issue).

Reviewing for abuse of discretion, the Sixth Circuit finds none. The trial court applied the correct legal standards, conducted an in camera Rule 412 review, crafted careful limits, and instructed the jury on the narrow purposes for which the evidence could be considered.

Impact and Practical Implications

This opinion operates at the intersection of retaliation doctrine and rape‑shield principles, with concrete guidance for trial courts and litigants:

• Retaliation plaintiffs who report sexual assault must be prepared to prove that they reasonably and in good faith believed the incident was nonconsensual when they reported it. They need not prove the assault actually occurred, but the reasonableness and sincerity of their belief is a triable issue—often turning on contemporaneous communications and conduct.
• Employers can introduce narrowly tailored, intrinsic consent evidence to rebut the reasonable/good‑faith element. But they cannot broaden the record into general sexual history or reputation. HR investigations should focus on facts bearing on the complainant’s own belief about the incident and avoid propensity-driven material.
• Rule 412 in civil Title VII cases is reaffirmed as a robust shield with nuanced application: intrinsic evidence tied to the incident is not “other sexual behavior,” yet the rule continues to bar predisposition and propensity uses and severely limits reputation evidence. District courts should:
  • Use in camera hearings for Rule 412 disputes;
  • Issue precise limiting instructions;
  • Exclude explicit media where its probative value can be achieved by stipulation or narrower proof;
  • Exclude third‑party disbelief evidence as irrelevant.
• Jury instructions and verdict forms should expressly include the “reasonable and good‑faith belief” element in opposition‑clause retaliation cases premised on sexual assault, as occurred here (uncontested on appeal).
• THRA alignment. Because Tennessee courts interpret the THRA in harmony with Title VII, the holding applies equally to THRA retaliation claims within the Sixth Circuit.

Policy-wise, some may worry that allowing consent evidence risks re‑trying the underlying assault in retaliation cases. The court’s cautionary framework seeks to mitigate that risk: it allows only evidence directly probative of the plaintiff’s belief about the incident, forbids propensity uses, and treats third‑party disbelief as irrelevant. The outcome is a calibrated balance between safeguarding victims from unfair character attacks and preserving the employer’s ability to contest the protected‑activity element with focused, incident‑specific proof.

Complex Concepts Simplified

• Opposition vs. Participation (Title VII):
  • Opposition clause protects employees who oppose (complain about) practices they reasonably and in good faith believe violate Title VII.
  • Participation clause protects those who file or participate in formal charges or investigations. Graf proceeded solely under opposition.
• Reasonable and Good‑Faith Belief:
  • Subjective good faith: the plaintiff actually believed the conduct violated the law.
  • Objective reasonableness: a reasonable person in the plaintiff’s position could hold that belief given the facts known at the time.
  • Applied here: Did Graf reasonably and in good faith believe she was raped (nonconsensual) when she reported it?
• “Materially Adverse Action” (Retaliation): An action that could dissuade a reasonable worker from making or supporting a charge of discrimination (e.g., termination). The appellate dispute did not center on this element.
• Rule 412 (Rape Shield):
  • Bars evidence of a victim’s “other sexual behavior” and “sexual predisposition.”
  • In civil cases, such evidence can be admitted only if its probative value substantially outweighs danger of harm/unfair prejudice; reputation evidence only if the victim puts it at issue.
  • “Other” means sexual behavior separate from the alleged incident. Intrinsic evidence about the incident itself can be admissible for non‑propensity purposes.
• Propensity vs. Non‑Propensity Use:
  • Propensity: suggesting someone likely consented on this occasion because of their general sexual interests or past conduct—barred by Rule 412.
  • Non‑propensity: using evidence strictly to show what the complainant believed about the specific incident (e.g., communications with the accused that bear on contemporaneous consent)—potentially admissible.

Conclusion

Graf sets two complementary, precedential guideposts in the Sixth Circuit. First, in a Title VII (and THRA) opposition‑clause retaliation case predicated on a sexual‑assault report, the plaintiff must prove she reasonably and in good faith believed she was reporting nonconsensual conduct made unlawful by Title VII. She is not required to prove the assault actually occurred. Second, in assessing that element, courts may admit consent evidence intrinsic to the alleged incident because it is not “other sexual behavior” under Rule 412—provided it is offered solely to evaluate the complainant’s reasonable, good‑faith belief, and not to imply sexual predisposition or propensity.

The decision affirms a jury verdict for the employer but delivers a cautionary evidentiary framework designed to protect complainants from unfair sexual‑history character attacks while allowing employers to challenge, with narrowly tailored proof, whether the plaintiff engaged in protected opposition activity. For practitioners, Graf is now the leading Sixth Circuit authority on how to try retaliation claims arising from sexual‑assault reports and how to litigate the attendant Rule 412 issues.