concurring in part, and in part dissenting.
I agree that Slominski is entitled to a new trial for the reasons set forth in the concurrence of Justice Connolly. The testimony of Drs. Sime and Moore does not support a claim that Reavis’ dysfunction from her childhood abuse rose to the level that substantially impaired her capacity to give “effective con*735sent” under the circumstances. Thus, the abuse that Reavis suffered as a child is not relevant unless the resultant dysfunction from the abuse substantially impaired Reavis’ capacity “to understand and weigh the harm and risks of harm against the benefits flowing from the proposed [sexual contact].” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 18 at 115 (5th ed. 1984). Since the expert testimony did not link the childhood abuse to a lack of capacity on Reavis’ part to render “effective consent,” the district court erred in receiving testimony regarding the abuse that Reavis suffered as a child for the purpose for which it was offered.
However, I write separately to express my views regarding the two jury instructions tacitly approved by the plurality in the event of a retrial. Slominski’s proposed instruction No. 3 states:
One who has reached the age of majority can give an effective consent to all kinds of conduct unless the defendant knows of some kind of abnormality, temporary or permanent, on the part of the consenting person. The abnormality must substantially impair the plaintiffs capacity to understand and weigh the harm and risks of harm against the benefits flowing from the proposed conduct, and the abnormality must reduce her capacity to consent below the level of the average person. The defendant must have knowledge of the abnormality at the time of the alleged act.
While this instruction correctly reflects the position of the Restatement (Second) of Torts § 892 A(2)(a), comment b. (1979), it is to be given only in the event that Reavis adduces relevant evidence that her consent, whether actual or apparent, was not “effective” because of some kind of abnormality on her part.
Slominski’s tendered instruction No. 4 is also aimed at the effectiveness of one’s consent. “Consent is not effective if it is given under duress.” The Restatement, supra, § 892 B(3) at 370. See, also, W. Page Keeton et al., supra, § 18. Proposed instruction No. 4 states, “A threat of economic duress such as the threat of a future loss of employment is not sufficient to invalidate the consent given. ” I dissent from that portion of the *736plurality opinion that approves Slominski’s tendered instruction No. 4, because I am not willing to perpetuate the fiction that the threat from an employer of loss of future employment is never sufficient to invalidate apparent consent to sexual contact by an employee.
This case is a classic example of those cases in Nebraska wherein an employee is without recourse to file a claim of sexual harassment under title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1988), or the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. § 48-1101 et seq. (Reissue 1993), because the employer does not employ the requisite 15 or more employees to be considered “an employer” under either act. See, 42 U.S.C. § 2000e(b); § 48-1102(2). Therefore, the employee who alleges that the employer is making unwanted physical contact of a sexual nature is left with a claim for civil battery or, in some instances, intentional infliction of emotional distress. The Catch-22 is readily apparent as illustrated by the facts of this case.
Employee claims battery — unwanted physical touching of the employee by employer. Employer claims that the physical contact was consensual — stating to her, “You know you want it.” Employee claims that if she did not comply with employer’s sexual requests, she would not have a job. Employer claims he did not specifically threaten to fire employee, although employee stated that employer said employee would lose her job and her marriage if she told anyone. Regardless of the nature or extent of the threat, employer requests that the jury be instructed to ignore the threat of a future loss of employment. The employer urges that such a threat, whether direct or indirect, does not invalidate employee’s apparent consent to the employer’s demand for sex.
Although the plurality’s approval of proposed instruction No. 4 is supported to some degree by cases from other jurisdictions and the Restatement, supra, § 892 B, comment j., the circumstances of this case are different, and the realities of the workplace call for further analysis. The plurality’s analysis does not take into account society’s increasing intolerance of workplace harassment or the growing recognition of the cen*737trality of work in a person’s life and the fact that “[f]or most employees, their job is the most valuable thing they possess . ...” Clyde W. Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 Va. L. Rev. 481, 532 (1976). See Foley v. Polaroid Corp., 400 Mass. 82, 508 N.E.2d 72 (1987) (Liacos, J., concurring in part and dissenting in part).
The U.S. Supreme Court has stated that “[i]t requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.” Truax v. Raich, 239 U.S. 33, 41, 36 S. Ct. 7, 60 L. Ed. 131 (1915).
As Justice Douglas put it, “it does a man little good to stay alive and free and propertied, if he cannot work.” Barsky v. Board of Regents, 347 U.S. 442, 473, 74 S. Ct. 650, 98 L. Ed. 829 (1954) (Douglas, J., dissenting). Justice Douglas wrote:
The right to work, I had assumed, was the most precious liberty that man possesses. Man has indeed as much right to work as he has to live, to be free, to own property. The American ideal was stated by Emerson in his essay on Politics, “A man has a right to be employed, to be trusted, to be loved, to be revered.” ... To work means to eat. It also means to live. . . . The great values of freedom are in the opportunities afforded man to press to new horizons, to pit his strength against the forces of nature, to match skills with his fellow man.
347 U.S. at 472 (Douglas, J., dissenting).
It is difficult to overstate the importance of the employment relationship as a focus of security and standing in our society.
The growing recognition of the centrality of work in a person’s life, together with an awareness of the severe economic consequences resulting from arbitrary treatment in the employment relationship, supports [the] assertion that employer control over the j'ob means that “the substance of life is in another man’s hands.”
J. Peter Shapiro & James F. Tune, Note, Implied Contract Rights to Job Security, 26 Stan. L. Rev. 335, 339 (1974). In my view, the threat of physical force is oftentimes no more sig*738nificant than the threat of losing one’s employment or career as an invalidation of the alleged consent to sexual contact for purposes of this tort.
In the instant case, Reavis’ employment options were extremely limited in Falls City, Nebraska. Reavis stated that she could not quit her job because she needed the money to support her family, and this was a high-paying job in Falls City. Reavis repeatedly testified that she was reluctant to refuse Slominski’s advances because she needed to work. To approve Slominski’s proposed'instruction No. 4, in light of the facts of this case, would fly in the face of the public policy of this state. See Nebraska Fair Employment Practice Act, § 48-1101. Given the employment policy of this state, it is difficult to reconcile the position of one of the dissents that the facts of this case could possibly constitute sexual harassment, but not sexual assault.
Under the circumstances, the district court’s instruction No. 11, derived from the Restatement (Second) of Torts § 892 (1979), is an accurate and complete statement of the law of consent. Instruction No. 11 states:
Consent is willingness in fact or conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.
If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.
A manifestation of consent, upon which the defendant may reasonably rely, will be equally effective even though there is no willingness in fact. The defendant is entitled to rely upon what any reasonable person would understand from the plaintiff’s conduct.
(Emphasis supplied.)
This instruction describes both actual consent and apparent consent, and distributes the risk equally between two adults that have engaged in sexual contact. Party A, claiming lack of consent, is always subjected to the risk that a jury will find his or her conduct was reasonably understood by party B to be consent to sexual contact. Party B, claiming that party A consented to sexual contact, is likewise at risk that a jury will find that it was not reasonable for him or her to assume that party *739A’s conduct constituted actual or apparent consent. In other words, given the context of a significant history of sexual advances by party B, threats of employment discharge, and various forms of rejection by party A, a jury may or may not find party B’s assumption of consent to sex by party A to be reasonable under the circumstances. Therefore, a correct application of the law allows the fact finder to determine whether there is (1) no liability because of sexual contact between two consenting adults, or (2) liability on the part of an individual who fails to comprehend the meaning of the word “no.”
Accordingly, while I agree that Reavis’ claim for civil battery should be remanded for a new trial, I do not join the plurality’s tacit approval of an instruction stating that the threat of losing one’s employment may never invalidate any alleged consent given under these circumstances. This is particularly so when the alleged consent is deemed to be ambiguous or equivocal. In sex at the workplace scenarios, a threat of loss of employment is rarely made without the accompanying litany of sexual overtures and unwanted touchings. A jury is most capable of making a determination of the effectiveness of a party’s alleged consent when properly instructed and allowed to consider all relevant factors in their proper context.
White, C.J., joins in this concurrence and dissent.