Have you ever had to deal with rumors of sexual misconduct in your workplace? Chances are you have — or you’ve at least heard sexual rumors. Is spreading rumors that a female employee is sleeping with her boss sexual harassment? Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of” sex. The US Supreme Court has ruled that harassment based on a characteristic protected under Title VII is a form of discrimination. Is spreading (false) sexual rumors about a female employee sleeping with her boss or sleeping around, or engaging in other similar conduct, harassment “because of” sex? While some courts have struggled with this issue, a number of courts have said “Yes”. Let’s look a little deeper.
Most recently in February 2019, the 4th Circuit Court of Appeals held that sexually based rumors about an employee who received 6 promotions while working for her company’s warehouse facility (ultimately becoming Assistant Operations Manager) was having sexual relations with a higher-ranking manager could support a sexual harassment claim. The rumor apparently started when a co-worker, who started around the same time in the same position as the plaintiff became disgruntled when the plaintiff became his superior. The court also noted that the highest-ranking manager in the warehouse (also a male) participated in spreading the rumor. The plaintiff alleged that the atmosphere became “increasingly hostile”. Shortly thereafter, the highest-ranking manager called a staff meeting. The plaintiff and another employee arrived late. The other employee was allowed in to the meeting, but the plaintiff was not. She found out later that the meeting involved a discussion of the rumor. When she tried to discuss the matter with the manager, he blamed her for “bringing the situation to the workplace” and stated that he could no longer let her advance in the company because of the rumor. The plaintiff then filed an EEOC charge, and then filed a formal complaint with HR. Ultimately the company fired her.
You know where this is going, right? Yep. She sued for sexual harassment and retaliation. The US District Court dismissed her harassment claim, reasoning that, offensive as the rumors were, they were based on alleged conduct, not sex. Hence the appeal to the 4th Circuit, which reversed the dismissal. The court emphasized that the rumor itself was sex-based, and that it implied that she “used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion”. The court further stated that:
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. (See McDonnell v. Cisneros, 84 F.3d 256, 259–60 (7th Cir. 1996) (concluding that rumors of a woman’s “sleeping her way to the top” “could constitute a form of sexual harassment”); Spain v. Gallegos, 26 F.3d 439, 448 (3d Cir. 1994) (concluding that a rumor that a woman gained influence over the head of the office because she was engaged in a sexual relationship with him was sufficient to allow a reasonable jury to conclude the a woman suffered the harassment alleged because she was a woman); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51, 258, 272–73 (1989) (plurality and concurring opinions) (noting that gender stereotypes can give rise to sex discrimination in violation of Title VII)
The complaint not only invokes by inference this sex stereotype, it also explicitly alleges that males in the RCSI workplace started and circulated the false rumor about Parker; that, despite Parker and Pickett’s shared tardiness, Parker as a female, not Pickett as a male, was excluded from the all-staff meeting discussing the rumor; that Parker was instructed to have no contact with Jennings, her male antagonist, while Jennings was not removed from Parker’s workplace, allowing him to jeer and mock her; that only Parker, who complained about the rumor, but not Jennings, who also complained of harassment, was sanctioned; and that Parker as the female member of the rumored sexual relationship was sanctioned, but Pickett as the male member was not.
Under these circumstances, the 4th Circuit had no trouble concluding that such a rumor was harassment “because of sex”. As you can see from the Court’s citations above, this is not the first time a court has found sexually-based rumors sufficient to support a claim for sexual harassment. (In any case, even if the Court had found here that the rumors did not constitute sexual harassment, this employee would likely have won her retaliation claim). The case is Parker v Reema Consulting Services, Inc. Case No. 18-1206 (4th Circuit, February 8, 2019).
To be fair, other courts have bought the employer’s argument, that the rumor was based on conduct, not sex. (See Lewis v. Bay Industries, Inc. decided in a US District Court in Wisconsin and Duncan v. City of Denver, decided by the 10th Circuit Court of Appeals.) That’s not really the point, though. OK, you might ask, what is the point then? Is it that rumors in general are bad? well partly, and sometimes. Is it that sexually-based rumors are bad. well, yes, but more than that.
Gossip is, to some degree, inevitable. That doesn’t mean, however, that you are free to ignore it in your workplace. If you become aware of rumors in the workplace that demean someone because of a characteristic protected by anti-discrimination laws, you need to take prompt action and treat it as you would any other allegation of harassment. On another note, courts are less receptive to the argument that someone is an “equal opportunity harasser” — especially in light of the #MeToo movement. If you choose to ignore these types of rumors, you do so at your peril. I think I’ve made my point, so I’ll end there for now.
Watch my first of two television interviews on Stop My Crisis with Vivian Gaspar.
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