Gossip is a natural part of human behavior and an inevitable temptation in every workplace. Evolutionary scientists believe that gossip among early humans was a way to communicate social norms and keep bad behavior in check. A 2012 study conducted at the University of Amsterdam and later published in the Journal of Applied Social Psychology found that 90% of office chit-chat is made up of gossip. But employers should be aware that they have responsibility to investigate and squash unfounded gossip and rumors. A recent case found that subjecting a female employee to false rumors that she slept with her boss to obtain a promotion can be a violation of Title VII for sex discrimination.
From December 2014 to May 2016 Evangeline Parker worked for Reema Consulting Services, Inc. (RCSI) at their warehouse facility in Virginia. While she began as a low-level clerk, she was promoted six times, in just a matter of two years, rising to the level of Assistant Operations Manager. After two weeks in the role, Parker learned that certain male employees were circulating “an unfounded, sexually-explicit rumor about her” that “falsely and maliciously portrayed her as having had a sexual relationship” with a higher-ranking manager in order to obtain her management role.
The rumor began with a male employee (Jennings) who started at RCSI at the same time as Parker and in the same position. Because of her promotions, Parker soon became his superior making him jealous and hostile to her achievement. In addition, the highest-ranking manager at the facility also participated in spreading the rumors. Parker felt she was being treated with open resentment and disrespect from many coworkers including her direct reports. She alleged her work environment became increasingly hostile.
Parker scheduled a meeting with the manager to discuss her concerns, but the manager blamed Parker for “bringing the situation to the workplace.” He indicated he could no longer recommend her for promotions or higher-level tasks because of the rumor and “would not allow her to advance any further within the company.” Several days later Parker met with the manager again to discuss the rumors. The manager again blamed Parker and said that he should have terminated her when she began “huffing and puffing about the BS rumor.”
Parker later filed a sexual harassment complaint with Human Resources against the manager and Jennings, who started the rumors. Several weeks later, Jennings submitted a complaint to Human Resources alleging that Parker “was creating a hostile work environment against him through inappropriate conduct.” Parker was told to have no contact with Jennings, but Jennings was allowed to spend time in her work area talking to and distracting her direct reports. Parker soon after was called to a meeting where she was simultaneously issued two written warnings and was fired. One warning was based on Jennings complaint against Parker, and the other asserted she had poor performance and was insubordinate to the manager.
Parker alleged that both warnings were unfounded and that RCSI failed to follow its three strikes rule under which employees are only fired after receiving three strikes. She had received no prior warnings. She also alleged the rule was disparately enforced such that male employees were generally not fired even after three or more warnings, while some female employees were terminated without three warnings or with all three warnings being issued at once. Based on these facts, Parker sued the company for sex discrimination and retaliation under Title VII, including a hostile work environment claim.
The District Court dismissed the hostile work environment claim finding that bullying and harassment based on the false rumor was not based on her sex. The Judge stated, “the problem for Ms. Parker is that her complaints to the establishment and circulations of this rumor is not based upon her gender, but rather based upon her alleged conduct, which was defamed by, you know, statements of this nature.” He further explained, “clearly, this woman is entitled to the dignity of her merit-based promotion and not to have it sullied by somebody suggesting that it was because she had sexual relations with a supervisor who promoted her. But that is not a harassment based upon gender. It is based upon false allegations of conduct by her.”
Parker later appealed. The basis of the argument was that the rumors were based on traditional sex stereotypes and that Parker used her gender, rather than merit, to seduce a male who was her superior in order to obtain a promotion. The rumor was originated by a male co-worker who was jealous that a female was advancing quicker than her male counterparts; its nature thereby implicating sex. It was further argued that the reaction to the rumors by her superiors further demonstrated how intertwined her gender was to the harassment.
The 4th Circuit Court agreed with Parker and found the rumor implied that Parker had “used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion.” The Court also found it plausible that the rumor invoked a perception that generally women, not men, use sex to achieve success. It is the double standard that women, but not men, are susceptible to being labelled as selling their bodies to get ahead. It was the rumor’s sexual undertone that was enough to find that Parker plausibly alleged she suffered harassment because she is a woman.
The take-away for employers is that they have an obligation to investigate and squash rumors that suggest hostile work environment claims. Courts are increasingly finding that stereotypes that can be associated with one gender over another can be considered as “sex” for purposes of Title VII. Rumors of women “sleeping their way to the top” can evoke sex stereotypes.
Sources: Mondaq 2/26/2019