By Amy Epstein Gluck

I am going to lay out the lede up front: last week, the U.S. Court of Appeals for the Fourth Circuit reversed the dismissal of a plaintiff’s hostile work environment claim based on sex-based rumors. It considered the claims to be rooted in unlawful sex stereotypes about women.

What Was This Case and “Rumors” About?

Well, the plaintiff, a Ms. Evangeline Parker, rose to the position of assistant operations manager at her employer’s warehouse facility within about a year and a half. Right after her last promotion, she learned rumors were circulating that she, basically, slept her way to that position.

Some of the details of these rumors:

  • One manager asked the promoting manager: “hey, you sure your wife ain’t divorcing you because you’re f–king [Parker]?” That spread around the workplace.
  • Soon thereafter, at an all-hands meeting, let the promoting manager into the conference room but then slammed the door in Parker’s face and locker her out. Then, naturally, staff discussed the rumor at the meeting.
  • Male employees at the workplace started and circulated the rumor.
  • Parker was told she could not advance any further at the company due to the rumor, was screamed at by the highest-ranking manager, who told her she should have been terminated when the rumor came out.

Parker filed a claim, and the company promptly fired her.

The Lower Court: NOT Sexual Harassment

The district court was not impressed with these allegations and granted the employer’s motion to dismiss. Although the district court clutched its pearls and expressed dismay and offense at the rumors of receiving a promotion because of sexual favors or having sex with the decision-maker, it ruled that this was not “sex-based” discrimination.

Huh?

Rather, the court considered the complaint about the rumor and its circulation to be based on her alleged conduct (having sex with the decision-maker) and NOT her gender. Additionally, the district court held that the harassment was not sufficiently severe or pervasive to have altered the terms and conditions of plaintiff’s employment.

Ok, Let’s Look Back At Title VII for Some Definitions

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination “on the basis of sex,” i.e., sex discrimination. Sexual harassment is one form of sex discrimination.

As I wrote in “Sexual Harassment Prevention 101,” (if you need a refresher, you can find that here), a “hostile work environment” is one type of sexual harassment.

To constitute a hostile work environment, first, comments or conduct must be based on a protected characteristic, such as gender—the harassment must be because of the harassee’s sex. Second, the comments must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. Finally, the sexually charged comments or conduct must be severe or pervasive to the point that the employee herself or himself considers it to be offensive and abusive.

Regarding sexual harassment, offensive conduct may include, but is not limited to, offensive sex-based jokes, slurs, epithets or name calling (based on one’s gender, body parts, romantic life, etc.); physical assaults or threats of assaults; intimidation, ridicule or mockery, insults or put-downs; offensive objects or pictures, or interference with work performance.

And…rumors! Yes, I think rumors could be included in this list.

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Guess what? According to the U.S. Supreme Court (or, SCOTUS), sex-based stereotyping also violates Title VII! As I noted here, discrimination on the basis of gender stereotypes is illegal. In Price Waterhouse v. Hopkins, SCOTUS stated,

[A]n employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender…An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.

Indeed, SCOTUS condemned sex stereotyping as a form of sex discrimination.

How Did The 4th Circuit Determine These Issues?

First, the 4th Circuit Court said “nuh uh” to the company’s contention and the district court’s conclusion that its actions toward Parker were because of her conduct, not her gender.

In a unanimous three-judge panel, and citing to Price Waterhouse, the court held:

As alleged, the rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labelled as “sluts” or worse, prostitutes selling their bodies for gain.

The case is Parker v. Reema Consulting Servs. decided on February 8, 2019. (I’m having trouble attaching the Order, but you can find it on Lexis or WL, or, I can send you a copy.)

Remember, too, we discussed this type of “double standard” with Serena Williams at the last Grand Slam.

As to Parker’s allegations concerning the rumors, the 4th Circuit identified that while both Parker and her manager were late to a meeting where the rumor was discussed, she was the only one excluded from it; male employees initiated and circulated the false rumor; and she was sanctioned as a result of this rumor but the manager she allegedly slept with was not sanctioned. This, the court concluded, is harassment based on gender, not conduct.

Second, the 4th Circuit held that the allegations of harassment were severe or pervasive sufficient to state a claim for a hostile work environment.

While the company alleged that the rumor circulated only for a few weeks and included just a “few slights,” the court found that the complaint stated otherwise. The harassment was continuous, permeated the workplace at the management and employee level from the time of Parker’s promotion to her termination, it was discussed at meetings, and Parker was told she would not receive further promotions. In fact, some aspects of the harassment were physically threatening to Parker—Parker’s manager slammed the door in Parker’s face at one meeting, screamed at her in another meeting, and blamed Parker for the rumor. Not for nothing, the court deemed it all the more threatening since this type of conduct came from Parker’s supervisor.

Employer Takeaways

Do not find yourself a defendant is such a lawsuit. Here’s how:

  • Have a clear, plain language sexual harassment policy in your employee handbook that discusses specific misconduct, i.e., no sexual or sexist jokes, sexual puns, sexual innuendo, smacks on the butt, grabbing of any body parts, quid pro quo harassment (and what that means), or pictures of half-naked women at work. Your policy should be explicit. Use examples. Maybe include rumors. Maybe include sex stereotyping.
  • Have your clear, anti-harassment policy in your employee handbook, and ensure it is disseminated throughout your company, updated as needed, and understood by all of your employees, including supervisors;
  • In that same handbook, encourage and provide a written procedure for reporting, and explain that management will promptly investigate claims of unlawful harassment. Then, as we emphasized herefollow this policy. Have clear standards for accountability and what merits discipline.
  • Provide regular, interactive training to your employees, yes, but to your supervisors and HR staff too so that they can recognize, respond to, and prevent unlawful harassment (based on sex, race, etc.)Give examples, fact-based scenarios, pop quizzes, whatever. The point is: HR and supervisors must recognize poor behavior, investigate it, and then follow the company’s own anti-harassment policies.
  • Ensure that senior leaders promote anti-harassment training and anti-discrimination/ harassment policies—shows commitment and enables people to “follow the leader,” which they usually do.

Don’t let sex stereotyping fall through the cracks. We’ve seen it is becoming more and more prevalent as a basis for sexual harassment. Need help? Contact me. Rumor has it that I work on these issues.