A good reason to swear off gossiping at work.

In a very interesting decision from the U.S. Court of Appeals for my Fourth Circuit, a three-judge panel recently held that false rumors that a successful woman “slept her way to the top” can create a hostile work environment under Title VII.

I agree.

We usually think of sexual harassment as “sexy” behavior — dirty jokes, unwanted kisses or gropes, invitations to spend 90 minutes at the Motel 6 — but it can also include behavior that isn’t “sexy” at all.

For example, let’s say we have an old-fashioned supervisor who believes women should stay home and look after their husbands, and he can’t resist sharing his views with his female employees. All the freakin’ time. At some point, those comments could become “severe or pervasive,” and the female subordinates might have a valid claim of sexual harassment. 

This isn’t sexy behavior, but it is offensive based on sex. (Of course, comments like this could also be Exhibit A in a sex discrimination suit if one of the women is denied a promotion or terminated.)

That general idea applied in the case of Parker v. Reema Consulting Services, Inc. Evangeline Parker got six promotions in less than two years, and — according to her lawsuit — one of her male peers who was hired around the same time (and who was now her subordinate), became envious. He allegedly started a false rumor that Ms. Parker got “the fast track” because she was sleeping with a manager.

Her lawsuit claimed that even the top guy at the facility believed the rumor and helped to spread it. As a result, her reputation was ruined, she was mistreated, and she was eventually fired.

I feel like there may be another side to this story, but if there is, we’ll have to wait to hear it because the court was ruling on a motion to dismiss the lawsuit under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

A short and relatively painless lesson in civil pro for our non-lawyer readers

When a defendant files a 12(b)(6) motion to dismiss — usually in the very early stages of the lawsuit — the court is required to assume that just about everything alleged in the lawsuit is true. The court can’t dismiss the suit unless the allegations — assuming they are true — do not state a claim under the law.

For example, let’s say I file a lawsuit against my former employer for discrimination. I claim that I was fired for having a Midwestern accent. My ex-employer should file a motion to dismiss immediately, and the court should grant it. Because even if I was fired for having a Midwestern accent, “Midwestern discrimination” is not illegal.

On the other hand, let’s say I file a lawsuit against my employer claiming I was fired for being a woman who is *ahem!* “40 or older.” If my employer filed a motion to dismiss that, the motion would usually be denied because sex and age discrimination are illegal. I’ll still have to prove that is what happened, but the court will let me have my chance. 

I hope this illustrates why I’m generally not a fan of the 12(b)(6) motion. Sometimes it’s the right thing to do, but in my experience, plaintiffs usually manage to at least claim that something illegal happened. If they do, the motion is often an unnecessary expense for the employer and a waste of time.

In most cases I’d prefer to provide our side of the story, develop the evidence in our defense, and then file what is called a motion for summary judgment after all the evidence is in. At that stage, the court still has to view the evidence in the light most favorable to the plaintiff (or non-moving party), but at least evidence can be considered. And, often, the evidence favors the employer.

Here’s how summary judgment could work. Going back to my hypothetical age-and-sex discrimination lawsuit, let’s say the court refuses to dismiss the lawsuit in the early stages, so the lawsuit goes forward, and at some point the employer takes my deposition. Under the withering cross-examination of the employer’s attorney, I blurt out that I believe I was fired because my Southern co-workers couldn’t stand my Midwestern accent. (“Honey, that voice is like gel manicured fingernails on a blackboard! Bless her heart!”)

And my co-workers and the person who fired me are all female and over 40, just like me.

Then the attorney asks me to explain why I believe my age and sex played a role in my termination, and I twang under oath, “Well, ’cause I’m over 40 and female. Duh.”

HINT: That isn’t enough.

Even though my lawsuit alleged illegal conduct, the evidence did not support my allegations. And the employer should be able to file a motion for summary judgment and get the lawsuit thrown out before it has to go through the expense and risk of a jury trial.

I’m sorry — were we talking about something?

Back to our case. Based on the very “plaintiff-friendly” standard that applies to a motion to dismiss, you can now see why the Fourth Circuit made this preliminary ruling in favor of Ms. Parker. (And she had a lot of folks on her side, including the Equal Employment Opportunity Commission, the Feminist Majority Foundation, the League of Women Voters of the United States, Legal Momentum, the People for the American Way Foundation, the Service Employees International Union, and the National Urban League, among a host of others.) 

In addition, the court cited decisions from the Third and Seventh circuits, both of which have also ruled that false “sleeping-to-the-top” rumors about women could be sexual harassment.

So now the lawsuit will proceed. At this point, we don’t know whether Ms. Parker’s story is true. The evidence may eventually show that she really was sleeping her way to the top, or at least having an affair with the manager, or maybe just telling everybody in the workplace that she was. Hence the gossip. Or it may show that everything Ms. Parker has alleged is true. We’ll eventually find out if the parties don’t settle.

Someone may ask, Well, what if the manager had been a female, and it was a man who rose unusually quickly through the ranks? The court’s discussion was very focused on the impact of “slut” rumors about women. But my best guess is that if there was false workplace gossip that a “fast track” guy was his female manager’s “boy toy,” “gigolo,” or whatever, and if the impact on his work life was roughly equivalent to that alleged by Ms. Parker, then he would also be able to assert a sexual harassment claim. 

In case you needed another reason to avoid workplace gossip, here you have it.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.


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