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Harassing Conduct Need Not Be Sexual To Prove Hostile Environment Claim

When does rude conduct in the workplace support a hostile environment sexual harassment claim? The First Circuit Court of Appeals addressed this important issue in the case of Rosario v. The Department of the Army decided last week and you can bet it’s going to make a big difference in sexual harassment cases down the road.

 What Happened In The Case

Ruth Rosario, a civilian employee, worked at the Rodriguez Army Heath Clinic in Fort Buchanan, Puerto Rico as a medical records technician. Her duties included checking patients in and maintaining computerized medical records. 

Rosario worked along side Ivan Arroyo who performed similar duties and trained her. According to the evidence, Arroyo was abusive to Rosario and others on a daily basis.

He threw medical records around, threw personal items in the garbage, disparaged co-workers with derogatory names and made racial comments. According to Rosario, Arroyo:

• Constantly criticized her clothes as too revealing
  

• Constantly talked about her underwear
  

• Walked behind her and made faces as he looked at the person she was talking to
  

• Complained about the way she would “walk, move, and talk”
  

• Would get men together to Rosario’s area where they would “meet, and talk, and then point at her and laugh”

Rosario complained to her supervisor, but the conduct continued.  About a year after the harassment began, Arroyo became Rosario’s supervisor.

Arroyo continued to criticize and mock Rosario and respond to her in ways she found humiliating. According to Rosario, Arroyo watched whatever she was doing or saying and challenged every decision she made. He told her she was fat, had delinquent children, and told her co-workers that she dressed like a “woman of the streets.” Rosario also presented evidence of sexually oriented jokes Arroyo got from the computer which he talked about and passed around.

As a result of Arroyo’s behavior Rosario felt uncomfortable every day, did not want to go to work, became depressed, started losing her hair, experienced panic attacks, and was eventually hospitalized. She needed psychiatric treatment, medication, and attributed the breakup of her marriage to her situation at work.

Rosario filed a formal discrimination complaint with the Army’s Equal Employment Opportunity Office. The agency found against her.

The Lower Court Rules Against Rosario

At the conclusion of the Army’s EEO proceedings, Rosario filed a lawsuit alleging gender and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964.  After dropping the national origin claim, the Federal District Court ruled on Rosario’s gender-based hostile work environment claim and found against her.

The court held that the record showed “Mr. Arroyo [to be] a rude man that lacked courtesy and professionalism,” but the evidence was inadequate to prove a violation of Title VII. The court granted summary judgment in favor of the defendants. Rosario appealed.

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Stereotyped Statements As Discrimination Evidence

Employment decisions based on stereotyping can be illegal. For example, comments suggesting that "women should be home with children instead of working", or that "Hispanics are lazy", or that "older workers can't adapt to change" -- can be used as proof in discrimination lawsuits and sometimes are.

I wrote recently about the case of Chadwick v. Wellpoint. In that case Laurie Chadwick, the mother of four --including a set of triplets -- was denied a promotion because she had "too much on her plate." It's an example of a fairly typical case in which we see gender stereotyping at play.

There was no evidence that Ms. Chadwick's family obligations were actually interfering with her work. Rather, her superiors simply assumed this would occur. The court in Chadwick v. Wellpoint stated: "the assumption that a woman will perform her job less well due to her presumed family obligations is a form of sex-stereotyping and ... adverse job actions on that basis constitute sex discrimination."

What we haven't seen much of -- in fact, haven't seen any of -- are cases in which evidence of gender stereotyping has been used to prove discrimination against a man -- certainly not a man who has been accused of sexual harassment. That's why the new case of Sassaman v. Gamache from the Second Circuit Court of Appeals is so interesting and important.

Facts of the Case

The Workplace Relationship Leading to He-Said, She-Said Harassment Complaint.

Carl Sassaman worked for the Board of Elections for Dutchess County, New York. He worked with a woman named Michelle Brant. According to the evidence, Brant and Sassaman spent time together. They ate lunch together, smoked cigarettes together, and considered themselves to be friends.

At some point, Brant became Sassaman's boss and their relationship soured. According to the testimony, Sassaman asked Brant out for a drink. She said no, so he suggested they meet for coffee. She declined that offer too, but according to Sassaman, she began to reveal intimate aspects of her personal life to him.

During that same conversation, as the story goes, she asked Sassaman whether he wanted to have a one-time sexual encounter with her. His reaction to the overture was that it was not a good idea to be friends with her anymore.

Brant had a different recollection of the conversation. She testified that in response to Sassaman's changed demeanor towards her, she asked Sassaman whether "he was going to let their friendship go down the tubes because she did not want to have sex with him."

A couple of months and a few incidents later, Sassaman learned from David Gamache -- the Board Commissioner -- of Brant's complaint that he was harassing and stalking her. Gamache told Sassaman to stay out of the office.

The Employer's Inadequate Response to the Harassment Complaint.

Brant filed a written complaint against Sassaman, which Gamache referred to the Dutchess County Sheriff's Department for investigation. The sheriff's investigation found insufficient evidence to support any type of criminal charge.

Gamache did not refer the matter for an internal investigation. Instead, a week after the sheriff's report, Gamache called Sassaman and told him that he would be terminated unless he chose to resign.

The "Smoking Gun" Comments

According to the testimony, Gamache defended his decision with this explanation:

• "I really don't have any choice. Michelle knows a lot of attorneys; I'm afraid she'll sue me."
• "And besides you probably did what she said you did because you're a male and nobody would believe you anyway."

The Lawsuit

Sassaman resigned, feeling that he had no other choice, and then filed a lawsuit alleging that he was terminated on the basis of sex stereotyping in violation of Title VII of the Civil Rights Act of 1964. The District Court judge threw out the case on the grounds that Sassaman failed to provide any evidence of sex discrimination.

The Second Circuit reversed. It found that the evidence of stereotyping -- Gamache's statement that because Sassaman was a man he probably did sexually harass Brant as she claimed -- was sufficient to support Sassaman's sex discrimination claim. The court's decision was soundly based on precedent concerning sex stereotyping -- developed in cases brought by women.

Legal Background on Sex Stereotyping

Back in 1989, the Supreme Court of the United States decided the landmark case of Price Waterhouse v. Hopkins. In that case, Ann Hopkins, a senior manager at the accounting firm of Price Waterhouse, was considered for, but denied partnership.

Statements in the review process leading to that decision described Hopkins as "an outstanding professional" who had a "deft touch," a "strong character, independence and integrity." Clients described her as "extremely competent, intelligent," "strong and forthright, very productive, energetic and creative." Others had a different view -- and a sexist one at that:

• One partner described her as "macho."


• Another suggested that she "overcompensated for being a woman"


• A third advised her to take "a course at charm school."


• Several partners criticized her use of profanity; in response, one suggested that they objected to this only "because it's a lady using foul language."

Hopkins sued for sex discrimination under Title VII. The Supreme Court, for the first time, addressed the legal significance of sex stereotyping in the context of Title VII case:

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group ... "In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes."

As applied to Ms. Hopkins, the Court went on to say:

It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring "a course at charm school."

Nor. . . does it require expertise in psychology to know that, if an employee's flawed "interpersonal skills" can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee's sex, and not her interpersonal skills, that has drawn the criticism.

While the Price Waterhousecase was hugely important at the time for victims of this type of discrimination, its main significance has had to do with technical issues regarding burdens of proof -- and little with to do with blazing a trail for litigation based on sex stereotyping evidence. So it came as a big surprise when the Second Circuit relied on the Price Waterhouse language above and reversed the district court in the Sassaman case.

Sex Stereotyping Sassaman As Likely To Harass female Employees

Holding no punches, the court in Sassaman stated that Gamache's decision to terminate Sassaman because men, as a group, have a propensity to sexually harass women, was "overt sex stereotyping." According to the Court:

Gamache appears to have defended his decision to credit Brant's allegations of sexual harassment by pointing to the propensity of men, as a a group, to sexually harass women. . .

A jury could reasonably construe Gamach's statement as persuasive evidence that he pressured Sassaman to resign because of his discriminatory assumptions about the propensity of men to sexually harass their female co-workers.

Failure to Investigate the Harassment Complaint

Compounding the problem for this employer was that it failed to investigate Brant's complaint. That too, according to the Court, constitutes evidence in support of Sassaman's claim. As the Court pointed out, when faced with a sexual harassment complaint:

The failure of an employer to conduct an adequate investigation or to undertake an appropriate response can constitute evidence in support of a Title VII plaintiff's allegations.

What's more, fear of a lawsuit , another defense raised by this employer, was also deemed to be a lousy excuse to terminate Sassaman. According to the Second Circuit:

An employer many not rely on an alleged fear of a lawsuit as a reason to shortcut its investigation of harassment and to justify an employment decision adverse to the putative harasser that itself violates Title VII.

This part of the decision is particularly interesting in light of the City Of New Haven's position in the Ricci case currently pending in the Supreme Court -- see Workplace Prof. Blog, suggesting that the employer in Sassaman may have felt in something of a bind, liable to the coworker if the allegations of harassment weren't taken seriously"; the Ricci decision is also at the center of the controversy surrounding the Sotomayer nomination.

Conclusions

In sum, Sassaman prevailed for two related reasons:

1. He presented evidence which constituted male sex stereotyping.
2. Because of such stereotyping, his employer credited the woman's version of the sexual harassment events and failed to properly investigate the charges she lodged against him.

While the law prohibiting sex stereotyping as the basis for an adverse employment decision has been around for a long time, there are a paucity of decisions that rely on it to substantiate favorable outcomes for the plaintiff.

There has never been a case that I know of where a sex stereotyping argument has been used in favor of a man who claims to have been improperly accused of sexual harassment. What this means is that men who have been victimized by false accusations of sexual harassment now have a powerful case to rely on that did not previously exist. Those deemed guilty of sexual harassment based on a "boys will be boys" knee-jerk reaction will finally have some relief.

Also, the defense of "we might get sued" may not carry the day to justify an unsubstantiated termination decision in such a situation. (We'll have to wait and see if the Supremes address this aspect of Ricci, in which the alleged discrimination may likewise have been motivated by fear of a lawsuit.) Employers, it seems to me, have a whole new can of worms to worry about.

Image: verbotomy.com

This post  originally appeared in George's Employment Blawg.

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Is it illegal to discriminate against a Caucasian employee against because of her friendship with and advocacy for African-American co-employees? According to a new decision from the Sixth Circuit Court of Appeals, Barrett, et al v. Whirlpool Corporation, the answer is yes. 

In this important case, three Caucasian production workers  sued Whirlpool claiming that they were retaliated against and subjected to a hostile work environment. They said it was because they were friendly  with African American co-employees and stuck up for them when faced with racial hostility at work.

Title VII of the Civil Rights Act of 1964, and 42 U.S.C. Sec.1981 both forbid discrimination on the basis of association with or advocacy for non-whites.

While admitting that association discrimination claims could be valid, Whirlpool contended that the plaintiffs' claims fell short because the associations with their black co-workers were only casual work friendships and not the type protected under these statutes. Only a significant association that extends outside of the workplace could give rise to a claim according to Whirlpool.

Put another way,  Whirlpool argued that the only kinds of  association claims which can be brought are the kind where an employee was discriminated against because of an intimate or family relationship with a minority like the cases where:

•  an employer discharged an employee after leaning that his daughter was bi-racial (see 6th Circuit  Court of Appeals, Tetro v. Elliott Popham Ponitac, Oldsmobile, Buick, & GMC Trucks, Inc.) or
• an employer discharged an employee upon learning of an interracial marriage (see llth Circuit Court of Appeals, Parr. v Woodman of World Life Ins. Co.)

The Court  rejected this argument and held (like the7th Circuit Court of Appeals in Drake v. 3M ) that associational discrimination could be found in the case of friendship between co-workers of different races:

If a plaintiff shows that 1)she was discriminated against at work 2) because she associated with members of a protected class, then the degree of the association is irrelevant. … The absence of a relationship outside of work should not immunize the conduct of harassers who targets an employee because she associates with African-American co-workers.

While the Court  of Appeals found insufficient evidence to support two of the employees claims, it found in favor of the third -- Treva Nickens, a Caucasian woman who worked at Whirlpool since 1983 and testified:

• it was commonplace to hear racist jokes and racist slurs including he word “nigger”
• she complained on a daily basis about theses comments but that her supervisor refused to do anything to stop it.
• she was harassed for “hanging around with blacks”
• she was told that “she needed to stay with her own kind”
• when she reported the conduct she was physically threatened
• she was directly harassed by her supervisors
• she was denied promotions for higher paying jobs because she spoke out on behalf of her African American friends.

The Court also held reaffirmed the proposition that advocacy on behalf of African-American co-workers was protected. According to the Court:

[A]s long as a plaintiff offers proof that she was, in fact, discriminated against because she advocated for protected employees, she may state a discrimination claim under Title VII.

The bottom line is that  when friends stick up for their minority co-workers in the face of discrimination or harassment, and as a result are subjected  to a a hostile work environment , there is legal protection.  I don't  remember seeing another case quite like it .

What's more, there is little doubt that its reasoning extends beyond race and can be relied upon to protect co-workers who stick up for women, the disabled, or anyone else in a protected class if the individual is then harassed because of it.

This is an excellent case for the promotion of fairness and dignity in the workplace and one that  all managers and human resource professionals should keep in their back pocket. 

 image:http://images.publicradio.org

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Can a plaintiff support her sexual harassment claim with evidence of sexual harassment she did not observe? According to the Fourth Circuit Court of Appeals in Ziskie v. Mineta the answer is yes.

Cynthia Ziskie sued the Federal Aviation Administration for creating a sexually hostile work environment.

In support of her claim, Ziskie submitted affidavits from co-workers containing examples of crude and inappropriate behavior (i.e. making fun of pregnant worker’s breasts, commenting that women should be home taking care of children instead of working, calling a woman "an alien with big boobs" , calling a woman a “stupidvisor”, telling a female supervisor to “fuck off ”, etc.)

The District Court threw out Ziskie’s case holding that Ziskie’s sexual harassment was not severe enough to support the claim. The District Court refused to consider the affidavits of the other female employees and would only consider what Ziskie personally experienced. In reversing the decision of the District Court, the Fourth Circuit Court of Appeals said:

 When examining all the circumstances of a plaintiff’s workplace environment, evidence about how other employees were treated in that same workplace can be probative of whether the environment was indeed a sexually hostile one, even if the plaintiff did not witness the conduct herself. Hostile conduct directed toward a plaintiff that might of itself be interpreted as isolated or unrelated to gender might look different in light of evidence that a number of women experienced similar treatment.

The opinion noted that the district court’s “blanket refusal” to consider the testimony of the other women was inconsistent with the Federal Rules of of Civil Procedure  and Evidence which require that all relevant evidence be considered:

Even if  Ziskie did not witness the conduct  described herein, it is nonetheless relevant because it could contribute to the evidence offered to show that the workplace environment at the Washington Center was indeed a hostile one.

This is a hugely important decision for victims of sexual harassment. In order to prevail in these cases, the plaintiff must prove that the harassment was severe or pervasive. Far too often claims of sexual harassment fail, as did this one initially, because the judge finds that the victim’s testimony alone does not meet that burden. In other words, yes some harassment may have happened, but it wasn’t “severe or pervasive” so you lose and the case is thrown out.

This decision, which allows the testimony of the co-workers to establish the severity or pervasiveness of the sexual hostility in the workplace, will go a long way in helping women assert their rights.     

image: http://www.worktrauma.org/CKF60026.JPG

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