Can Workplace Gossip Become Sexual Harassment?

By: Melanie Dunajeski

I’ve written a lot about the changing landscape of sexual harassment in the workplace and examining the many faces that harassment can take.  As human beings, employees bring the full spectrum of behaviors with them to the workplace and courts have examined many of those behaviors in the context of whether they may create employer liability under Title VII of the Civil Rights Act of 1964 for discrimination “because of sex.”  This fall,  an employer is asking the United States Supreme Court to agree to hear the question of whether a false rumor that an employee slept with her superior in order to get promotions can support a claim of sexual harassment.  Reema Consulting Services, Inc. v. Evangeline Parker.

In simplified form, the allegations of the employee are that Employee Evangeline Parker started work as a low-level clerk at Reema’s warehouse facility at the same time as male employee Jennings. Parker was promoted six times between December 2014 and May 2016, ultimately rising to Assistant Operations Manager of the facility, and also becoming Jennings’ superior. Shortly after the last promotion, Jennings is alleged to have started a sexually explicit rumor that portrayed Parker as having a sexual relationship with a higher-ranking manager, Pickett, in order to gain her promotions.  The rumor spread—in part through the comments of the highest-ranking manager, Moppins, to Pickett to the effect that he supposed Picket was getting a divorce because he’d been sleeping with Parker.  As the rumor spread, Parker was treated with open resentment and disrespect from other employees, including the ones she was charged with supervising.  Parker was shut out of meetings, admonished by the manager, told she would not advance further, and blamed for the rumor in a meeting where the manager lost his temper and began screaming at Parker.  She filed an internal sexual harassment complaint with company HR—several weeks later her original tormentor and the originator of the rumor made a hostile environment complaint to HR about Parker. Parker was admonished not to talk to Jennings, but Jennings was permitted to spend time in Parker’s work area talking to and distracting the employees Parker managed.  A few days later, Parker was called to a meeting in HR with the manager, HR, and legal where she was issued two written warnings and then fired.  She filed a Charge of Discrimination with the EEOC and later filed the lawsuit alleging sexual harassment and retaliation for making a complaint of sexual harassment.

While the trial court initially dismissed Parker’s lawsuit, the 4th Circuit Court of Appeals reversed and sent the case back to the trial court, rejecting the employer’s argument that the gossip was based on “conduct” and not on gender, as required to support a claim of sexual harassment as a form of sex discrimination under Title VII, concluding that liability is implicated “where the employer is charged with participating in the circulation of the rumor and acting on it by sanctioning the employee”.   We don’t yet know whether the Supreme Court will agree to hear this case, but the landscape across the country is far from uniform-some circuits do accept sexually explicit rumors as potential support for sexual harassment, some do not, and the reasoning as to whether sexually explicit gossip constitutes discrimination “because of sex” is far from uniform. Add to this picture that some of the underpinnings of Title VII’s prohibition on discrimination “because of sex” will be examined in the 2019-2020 Supreme Court term in a trio of sexual orientation and gender identity cases (see my June Blog Post)—including the sexual stereotyping cases that both sides in this current dispute look to for support, and the uncertainty is even deeper.

What can an employer do?  As a starting place, don’t wait –address the issue now to minimize your future risks.  An employer can require at least a minimum level of civility in the workplace, with clear consequences for disruptive, insubordinate, or bullying behaviors—all of which can easily be made part of company employment policies.  Malicious gossip can fit right into this category. There will always be a certain amount of mundane and harmless gossip in the workplace–people are people.  However, when the content or tone of the gossip turns to the disruptive, threatening, malicious, vicious or sexually explicit, supervisors and managers need to recognize and address the problem at the earliest possible opportunity.  Train supervisors and managers in recognizing this type of inappropriate behavior and how to take these concerns to human resources for investigation and assistance. Make it the duty of your supervisors and managers to report observed inappropriate behavior of this type, and it should go without saying that supervisors and managers should never participate in creating or spreading malicious gossip as they did in this case.  Prompt and appropriate discipline for an offender sends a message not just to the offender, but also to your entire workforce that your culture of civility is something that you value and that you will protect.  As with the violation of any other workplace rule or policy, this type of discipline must be applied consistently, documented contemporaneously, and appropriate consequences administered if the behavior is not corrected. Be prepared to sever the employment relationship if the employee is unwilling to conform his/her behavior to the minimum standards that you require.

Stay tuned for how the Supreme Court may address this issue–but in the meantime, make civility a priority in your workplace.  Need help addressing problem employees or problem behaviors?  Contact the employment lawyers at Drewry Simmons Vornehm, LLP.