It’s a tale as old as time: a woman in power obviously slept her way to the top. How else could she have gotten there? Successful women are all too familiar with this trope; most will hear it said of them at some point and will certainly hear it said of other women (and some will say it about other women). Sometimes the accusation that a woman has slept her way to the top is mixing up roles—she might have been coerced into sexual behavior by a man in power. Sometimes the accusation will be based on a misplaced inference from a sexual relationship that was consensual and entirely unrelated to her career progression. But much of the time, it is simply false. There was no sex, and there was no trade. There was just success. But when we see a woman who had succeeded in a world designed for men and assume she must have used her femininity and sexuality to achieve what eludes many women: power.
Is it sex discrimination to spread a false rumor that a woman slept with her male boss in order to obtain a promotion? According to a recent ruling by the U.S. Court of Appeals for the Fourth Circuit, Parker v. Reema Consulting Services, Inc., the answer is yes. This is a cognizable claim under Title VII.
Evangeline’s Rise Through the Ranks
The plaintiff in this case, Evangeline Parker, worked for Reema Consulting Services, Inc. (RCSI) at a facility in Virginia. She was promoted six times from her original position as a low-level clerk, becoming an assistant operations manager in less than two years. Shortly after assuming the managerial position in March 2016, Parker learned that “certain male employees were circulating within RCSI” what she described as “an unfounded, sexually-explicit rumor” about her having a sexual relationship with Demarcus Pickett, a higher-ranking manager, in order to get promoted to a management position.
According to her complaint—which the trial and appellate courts are required to accept as true when deciding whether a motion to dismiss should be granted—that rumor originated with a co-worker, Donte Jennings, who began working for the company around the same time as Parker and who would report to Parker as a result of her promotion. But Jennings was not the sole alleged culprit. The highest-ranking manager at Parker’s facility, Larry Moppins, facilitated the spread of the rumor. He taunted Pickett, asking him “hey, you sure your wife ain’t divorcing you because you’re f—king [Parker]?” Not surprisingly, the rumor, and the complicity in spreading it by those in power, led to a difficult environment for Parker. She alleges that she was “treated with open resentment and disrespect” from many employees, including those she supervised.
In late April 2016, Moppins presided over a mandatory staff meeting. Parker and Pickett arrived at the same time, a few minutes late; Pickett was permitted to enter the room, but Moppins “slammed the door in Ms. Parker’s face and locked her out.” In addition to the humiliation of being physically excluded from a mandatory meeting, Parker was disturbed to learn the next day that the false rumor was discussed during the meeting. She asked to meet with Moppins to discuss the situation, but his reaction was to blame her for “bringing the situation to the workplace.” Although he claimed to have “great things” planned for her at the company at one time, he “could no longer recommend her for promotions or higher-level tasks because of the rumor.” He would not, he promised, “allow her to advance any further within the company. A second meeting a few days later went no better; Moppins said he regretted not terminating her once she first started “huffing and puffing about this BS rumor.” He “lost his temper and began screaming” at her.
Parker filed a sexual harassment complaint against Moppins and Jennings with the human resources office. Jennings responded by filing a complaint against her, alleging that she “was creating a hostile work environment against him through inappropriate conduct.” She was told to have no contact with Jennings, an exhortation she followed despite insisting that his allegation was false.
The situation deteriorated. She stayed away from Jennings, but he was permitted to loiter around her work area and distract her subordinate employees. She complained multiple times about his behavior, but nothing was done. On May 18, 2016, Parker was called to a meeting with Moppins, HR, and the in-house lawyer, where she was simultaneously given two written warnings (one ostensibly for her treatment of Jennings and the second for being insubordinate to Moppins) and fired.
The Lawsuit, and Parker’s Theory of Discrimination
Parker sued RCSI alleging three counts of discrimination under Title VII: (i) a hostile work environment based on her sex; (ii) retaliatory termination for complaining about the hostile work environment; and (iii) discriminatory termination based on her firing after two warnings when men were given the benefit of a company progressive discipline policy that called for firing only after three or more warnings.
Parker’s hostile environment theory is simple: her co-worker spread a false rumor—and the highest-ranking manager spread it further–about her sleeping her way to the top and this would not have happened if she were a man. The district court dismissed her hostile work environment claim, concluding that while it was surely “offensive” to be the subject of sexual rumors, this is “not a harassment based upon gender.” It is, the court explained, “based upon false allegations of conduct by her. And this same type of a rumor could be made in a variety of other context[s] involving people of the same gender or different genders alleged to have had some kind of sexual activity leading to a promotion. But the rumor and the spreading of that kind of a rumor is based upon conduct, not gender.” The court added insult to injury with its determination that the unwelcome conduct, even if discriminatory, was not sufficiently severe or pervasive to violate Title VII. The court then dismissed her retaliation claim because she could not reasonably have believed the rumors constituted discrimination—and she therefore was not entitled to protection from retaliation for complaining (an application of the specious “reasonable belief” doctrine that Deborah Brake and I discuss here).
The Fourth Circuit Court of Appeals reversed the district court on its dismissal of Parker’s first two counts—hostile work environment and retaliation. The rest of this column will explain why the appellate court was right to do so.
Understanding Sex-Based Harassment
Parker’s hostile work environment claim rests on two well-established principles of sexual harassment law that sometimes get lost in the shuffle. First, conduct that is sex- or gender-based, though not sexual, can create an actionable hostile work environment, and sex stereotyping is a type of sex-based conduct. Second, conduct directed at a female employee that would not be directed at a male employee is sex-based. Let’s unpack these rules a bit more.
Courts first began to recognize that sexual harassment constituted a form of illegal sex discrimination in the very late 1970s. It was recognized as a type of intentional discrimination by the EEOC in 1980 and by the U.S. Supreme Court in 1986 in Meritor v. Vinson. Intentional discrimination under Title VII includes employment actions that are based on the employee’s protected characteristic, including his or her sex. In the early harassment cases, there was little if any discussion of whether a particular allegation of sexual harassment occurred “because of sex.” Courts simply assumed—accurately, in many cases—that male-on-female sexual advances in the workplace were motivated by the man’s (heterosexual) sexual desire and, therefore, would not likely have occurred but for the victim’s sex.
As sexual harassment litigation became more common, courts began to confront allegations of same-sex harassment, as well as allegations of harassment that, while directed at women, were not sexual in nature. The assumption about the motive of heterosexual desire did not work in those cases, and courts and scholars were forced to rethink—or at least more carefully articulate—why harassment is a form of discrimination. In its very first guidelines, the EEOC recognized that a hostile environment based on sex could be actionable whether or not it involved sexual conduct. It simply had to occur because the targeted employee was a woman or was a man. The Supreme Court in effect endorsed this view in Meritor when it recognized the validity of a hostile environment claim based in part on a precedent involving racial harassment. Title VII prohibits discrimination on the basis of a whole range of identity traits – race, color, ethnicity, national origin, and sex. An employer cannot fire an employee because of any one of those traits, but it also cannot create or tolerate harassment based on one. And it ruled in Price Waterhouse v. Hopkins (1989) that the application of sex stereotypes is a type of sex discrimination.
Although both the EEOC and the Supreme Court recognized the validity of a non-sexual, sex- harassment claim, lower federal courts had quite a few rough years with some messy and indefensible court rulings where they tried to sort out what it means to harass someone “because of sex.” Some courts refused to find illegal harassment without male-on-female sexual behavior. Others looked only for proof of sexual desire, whether the harassment was opposite-sex or same-sex—choosing to ignore even dramatically different gender differences in employment experiences as long as desire was not at issue.
After a few rough years with some messy and indefensible court rulings, the Supreme Court resolved much of the confusion in Oncale v. Sundowner Offshore Services, Inc. (1998). In that case, the Court held that same-sex harassment can be actionable under Title VII as long as it occurs because of the target’s sex. This can be proven in a variety of ways, including by a showing that the conduct was motivated by sexual desire, that it is motivated by animus toward one sex or their presence in the workplace, or that the unwelcome conduct is simply directed at members of only one sex. All of these showings suffice because the guiding principle, which the Court borrowed from an earlier precedent, Harris v. Forklift Systems, is “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”
The Fourth Circuit’s (Correct) Ruling in Parker v. Reema Consulting Services, Inc.
All told, the Supreme Court’s precedents make clear that harassing a woman through the application of a gender-based stereotype can be actionable if it satisfies the other elements of a hostile work environment claim. To prevail on a hostile work environment claim, the plaintiff must show that she was subjected to unwelcome sexual or sex-based conduct that was severe or pervasive and that had the effect of creating a hostile, offensive, or abusive working environment.
RCSI argued that the rumor about Parker having slept her way to the top was not “gender specific” and was therefore insufficient to support a claim of an illegal hostile environment for women. The district court accepted this argument—classifying the rumor as one based on her “conduct” (an odd claim since Parker alleges there was no conduct) rather than her gender. The appellate court, however, understood the true nature of the insidious rumor. As the court wrote,
As alleged, the rumor was that Parker, a female subordinate, had sex with her male superior to obtain a promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. 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. . . . The complaint . . . invokes by inference this sex stereotype. . . .
In short, because “traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society, and “these stereotypes may cause superiors and coworkers to treat women in the workplace differently from men,” it is plausibly alleged that Parker suffered harassment because she was a woman.
Even if the stereotype was not so clearly rooted in notions about gender, Parker’s complaint identifies ample evidence that she was singled out for adverse treatment because of her sex. The rumor involved Parker and her supervisor, Pickett. But only Parker was excluded from a staff meeting where the rumor was discussed. Only Parker was screamed at and had doors slammed in her face when she tried to discuss the rumor. When the male co-worker who started the rumor complained about Parker—she was punished, even though no action had been taken against him when she complained about him. If proven at trial, the allegations of sex-based differential treatment are more than sufficient to show that the hostile environment was because of Parker’s sex.
The court also overturned the district court’s conclusion that the sex-based harassment was not sufficiently severe or pervasive to be actionable. “Indeed,” the appellate court wrote, “the harassment was continuous, preoccupying not only Parker, but also management and the employees at the Sterling facility for the entire time of Parker’s employment after her final promotion.” The court’s run-through of the allegations in Parker’s complaint makes clear that the misconduct was more than sufficient to alter Parker’s working conditions in a discriminatory manner.
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 . . . whether his wife was divorcing him because he was “f—king” Parker. The same manager called an all-staff meeting, at which the rumor was discussed, and excluded Parker. In another meeting, the manager blamed Parker for bringing the rumor into the workplace. And in yet another meeting, the manager harangued Parker about the rumor, stating he should have fired her when she began “huffing and puffing” about it. During this period, Parker was also told that because of the rumor, she could receive no further promotions in the company. She then faced a false harassment complaint launched by the male employee who started the rumor and was sanctioned based on the complaint. . . .
The alleged facts and all “reasonable inferences therefrom” demonstrate that the “harassment related to the rumor was all-consuming from the time the rumor was initiated until the time Parker was fired.” That simply has to be enough to be actionable under Title VII.
The district court got this case laughably wrong, and the appellate court fixed the error. The Supreme Court was asked to review the case, but fortunately declined. Score one for the enforcement of our anti-discrimination laws. But the underlying allegations in this case are disturbing, as just another example of the many ways in which working women do not compete on an equal playing field. But Evangeline Parker will now get to have her day in court and to stand up for her right to be taking seriously in a managerial position she earned.