EEOC-Initiated Litigation - 2022 Edition

52 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP enough on its own to establish a Title VII hostile environment claim. ” 384 The District Court concluded that plaintiff’s hostile environment claim failed as a matter of law because evidence of a “workplace crush” simply did not meet the high threshold of objectively severe and pervasive harassment that is necessary to establish such a claim under Title VII. 385 Changing standards of workplace conduct have sometimes factored into the EEOC’s legal theories and court decisions. For example, in Parker v. Reema Consulting Services, Inc. , 386 the EEOC filed an amicus brief, arguing that the plaintiff in that case had pled a plausible hostile work environment claim where she alleged that male employees spread a false rumor that she had been promoted because she engaged in a sexual relationship with her supervisor. 387 The District Court for the District of Maryland dismissed the complaint, holding that – however demeaning and objectionable the alleged rumor might be – it was not based upon her gender, but rather upon her alleged conduct, and therefore could not be considered discrimination “on the basis of sex. ” 388 The EEOC, along with a number of other women’s groups and civil rights groups, filed an amicus brief arguing, among other things, that the complaint plausibly alleged that the harassment plaintiff suffered was “because of sex. ” 389 The Fourth Circuit agreed, holding that “the dichotomy that . . . the District Court[] purports to create between harassment ‘based on gender’ and harassment based on ‘conduct’ is not meaningful in this case because the conduct is also alleged to be gender-based.” 390 According to the Fourth Circuit, plaintiff had plausibly alleged a rumor that invokes a deeply rooted perception that women, and not men, use sex to achieve success . 391 Because the rumor was based on traditional negative stereotypes regarding women in the workplace and their sexual 384 Id. 385 Id. With respect to plaintiff’s quid pro quo claim, the District Court held that there was a genuine dispute of material fact as to whether plaintiff’s supervisor’s reason for terminating plaintiff was because she had rebuffed his advances. Id. at *7. Among other things, the stated reasons for plaintiff’s termination – including attendance issues and falsified time records – had been disregarded on other occasions, which could lead a jury to conclude that those reasons were merely a pretext for discrimination. Id. Finally, with respect to plaintiff’s retaliation claim, the District Court similarly held that the EEOC had produced sufficient evidence to state a prima facie case of retaliation based on the same evidence of pretext: “the lack of documentation about attendance issues and the close proximity to [supervisor’s] alleged advances further suggest that her opposition to his harassment may have been the real reason that [supervisor] terminated [plaintiff].” Id. at *8. 386 Parker v. Reema Consulting Servs., Inc. , 915 F.3d 297 (4th Cir. 2019). 387 That case involved a female employee of a consulting services company who had been rapidly promoted from a low level clerk to the Assistant Operations Manager of one of the company’s warehouse facilities. Id. at 300. According to the allegations in the complaint, within weeks after receiving her promotion, the plaintiff learned that some male employees of the company had been circulating a false rumor that she was involved in a sexual relationship with one of her managers, and that she had been promoted as a result of that relationship. Id. Plaintiff also alleged that she was treated with open resentment and disrespect by her coworkers, including her subordinates, as a result of the rumor. Id. Plaintiff filed a sexual harassment complaint against some of her co-workers with the company’s Human Resources Manager. Id. at 301. A few weeks later, one of her subordinates, who was one of the subjects of plaintiff’s complaint, filed his own complaint against plaintiff. Id. Plaintiff alleged that she was instructed to have no contact with that subordinate, but that he was nevertheless allowed to spend time in plaintiff’s work area and, during such times, that he continued to engage in harassing conduct towards her. Id. Plaintiff was fired shortly thereafter. She alleged that her termination was contrary to the company’s “three strikes” policy and was in fact retaliation for the complaint she had filed about the harassment she had experienced. Id. 388 Id. at 301-02. The District Court held: “this same type of a rumor could be made in a variety of other contexts 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 rumor is based upon conduct, not gender.” Id. at 302. 389 Amicus Curiae Brief for the EEOC at 15-21, Parker v. Reema Consulting Servs., Inc. , 915 F.3d 297 (4th Cir. 2019) (No. 18- 1206), ECF No. 23. According to the EEOC, the rumor itself was gender-based, as was the harassment that stemmed from that rumor. Id. at 16. The EEOC pointed out that the complaint alleged that the rumor was started and circulated by male employees, and that there was nothing gender-neutral about the circulation of a rumor that a female employee had “slept her way to the top.” Id. at 17. “Unfounded accusations that a woman worker is a ‘whore,’ a siren, carrying on with her coworkers, a Circe, ‘sleeping her way to the top,’ and so forth are capable of making the workplace unbearable for the woman verbally so harassed, and since these are accusations based on the fact that she is a woman, they could constitute a form of sexual harassment.” Id. (quoting McDonnell v. Cisneros , 84 F.3d 256, 259-60 (7th Cir. 1996)). 390 Parker , 915 F.3d at 304. 391 Id. at 303.