How to NOT handle false rumors of a female sleeping her way to a promotion.
A female employee was promoted six times in just over a year, reaching a post few women at her company had ever occupied. Soon thereafter a false rumor started that she owed her rise not to hard work and skill, but to a sexual affair with a higher-ranking manager.
This false rumor was started by a male employee, who began working at the same time as the female employee and in the same position. Because of her promotions, however, she soon became his superior, making him jealous of and ultimately hostile to her achievement. The highest-ranking manager at jobsite actually participated in spreading the rumor. As the rumor spread, the female employee was treated with open resentment and disrespect from many coworkers, including employees she was responsible for supervising.
When the jobsite manager called a mandatory all-staff meeting, the female employee and the male employee who she supposedly had slept with arrived a few minutes late, the jobsite manager let the male enter the room but slammed the door in the female employee’s face and locked her out. During the meeting comments were made about the female sleeping with the male manager.
The following day, the female employee arranged a meeting with her supervisor to discuss the rumor, and at that meeting her supervisor blamed her for bringing the situation to the workplace. He stated that he had “great things” planned for her at the company but that he could no longer recommend her for promotions or higher-level tasks because of the rumor. He added that he would not allow her to advance any further within the company.
Later that same day, she filed a sexual harassment complaint against her male supervisor with the company’s Human Resources Manager. Several weeks later, she was accused of creating a hostile work environment, after which she was then instructed, to have no contact with the male she filed a harassment complaint against, but he was allowed to interact with her staff.
Although she had never received any prior warnings, she was then issued two written warnings and then fired.
She filed a charge of discrimination with the EEOC and then sued her employer alleging a Title VII hostile work environment claim for discrimination because of sex, and a retaliatory termination claim. The employer argued that the harassment she suffered was not harassment based upon gender; rather, it was based upon false allegations of conduct by her. Also, the employer argued that the harassment was not sufficiently severe or pervasive to have altered the conditions of her employment because the time period was very short in terms of how long this rumor was in circulation - just a matter of a few weeks – and the few slights that she alleged did not rise to the level necessary for it being severe and pervasive. The federal District Court agreed with the employer and dismissed the lawsuit.
The employee appealed, and was supported by many women’s groups and the EEOC. The Appellate Court disagreed with the employer and the district court and reversed the district court’s ruling on the above two issues. Parker v. Reema Consulting Servs., No. 18-1206, 2019 U.S. App. LEXIS 3965 (4th Cir. Feb. 8, 2019)
The Court of Appeals noted that the rumor was that the female subordinate had sex with her male superior to obtain promotion, implying that she used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. The Appellate Court explained that this 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 (noting that another court concluded that rumors of a woman’s sleeping her way to the top could constitute a form of sexual harassment).
This allowed the Court to conclude that the female’s lawsuit alleged that the harassment related to the rumor was all-consuming from the time the rumor was initiated until the time the female was fired.
The Appellate Court also noted that the warehouse manager slammed the door in the female’s face, and at another meeting, he screamed at her as he lost his temper while blaming her for the rumor. The Appellate Court wrote, the fact that “this harassment came from [her] supervisor made it all the more threatening.” The Appellate Court concluded that she adequately alleged the severe or pervasive element of illegal harassment.
Finally, the Appellate Court reasoned that the harassment related to the rumor was humiliating. It “goes right to the core of somebody’s merit as a human being” to suggest they were promoted not on worth but for sexual favors. The rumor and its consequences thus entailed “open resentment and disrespect from her coworkers,” including those she was responsible for supervising.
The Court of Appeals further explained that the males in the workplace started and circulated the false rumor about the female; that, despite her and the male manager’s shared tardiness, she as a female, not the male, was excluded from the all-staff meeting discussing the rumor; that she was instructed to have no contact with her male antagonist, while he was not removed from her workplace, allowing him to jeer and mock her; that only she, who complained about the rumor, but not the male, who also complained of harassment, was sanctioned; and that she as the female member of the rumored sexual relationship was sanctioned, but the male member was not. This allowed the Court of Appeals to conclude that the conduct was also alleged to be gender-based.
The Appellate Court rejected the employer’s argument that the harassment she alleged in her lawsuit was not sufficiently severe or pervasive to create a hostile work environment. Although the employer argued that the rumor circulated for only “a few weeks” and involved only “a few slights” the Court noted that the female employee claimed that this was a 14-month period. The female claimed that the harassment began with the fabrication of the rumor by a jealous male workplace competitor and was then circulated by male employees. Management too contributed to the continuing circulation of the rumor. The highest-ranking manager asked another manager, who was rumored to be having the relationship with her, whether his wife was divorcing him because he was having sex with the female subordinate. The same manager called an all-staff meeting, at which the rumor was discussed, and excluded the female. In another meeting, the manager blamed her for bringing the rumor into the workplace. And in yet another meeting, the manager harangued the female about the rumor, stating he should have fired her when she began “huffing and puffing” about it.
This case ruling allows the female to continue to pursue these two allegations in her lawsuit. She still must prove her case.
This decision was handed down by the Fourth Circuit Court of Appeals, which is not controlling in Florida, but Florida Courts will give it persuasive authority.
The take home message for Florida employers is that when presented with whether a false rumor that a female employee slept with her male boss to obtain promotion can ever give rise to her employer’s liability under Title VII for discrimination “because of sex,” a Court of Appeals very recently concluded that where the employer is charged with participating in the circulation of the rumor and acting on it by sanctioning the employee, do implicate such liability.
This should be a reminder to Florida employers of the importance of training management so they know how to treat employees and how they should respond to complaints. This case also demonstrates an example of poor human resources response to the complaint of a female employee. Retaliating against a female complainant will almost always create legal liability for a Florida employer.
If you own a Florida business and you have questions about sex discrimination or rumors or gossip based on sex, you may email the Law Office of David Miklas, P.A. for a consultation or you can call David Miklas at 1-772-465-5111 to discuss sexual discrimination or retaliation issues in Florida.
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