On The Case

‘Sleeping with the boss’ rumor is sex discrimination: 4th Circuit

(Reuters) - In the age of #MeToo, every sentient person knows that sexual harassment is illegal. Bosses can’t use their authority to pressure employees - men or women, according to the U.S. Supreme Court’s 1998 ruling in Oncale v. Sundowner Offshore Services - into sexual relationships. And if bosses do abuse that power, sexual harassment victims, regardless of their gender, can sue their employers under Title VII of the Civil Rights Act. It’s sex discrimination to harass employees, whether they’re men or women.

Accusing employees of “sleeping their way to the top” is a sort of dark-mirror reflection of sexual harassment. I suspect we’ve all heard stories about how attractive co-workers used their sex appeal to advance their careers. I’ll confess: Until I read a decision issued Friday by the 4th Circuit U.S. Court of Appeals, I didn’t perceive employees who faced that kind of vicious gossip to be victims of sex discrimination. The 4th Circuit’s ruling in Parker v. Reema Consulting quite convincingly explains why subjecting a female employee to false rumors of an affair with the boss is a violation of Title VII. That’s vindication for Evangeline Parker, who well deserves it based on the story recounted by the 4th Circuit.

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But the appellate court’s ruling, as I’ll explain, leaves some important questions unanswered. Evangeline Parker’s case confronts some pernicious stereotypes about how women succeed in their jobs. I just hope it doesn’t inadvertently entrench those canards.

Parker, according to the 4th Circuit, was an absolute whiz at her job for the military contractor Reema Consulting. She started as a low-level clerk in December 2014. By March 2016, she had received six promotions. As an assistant operations manager, Parker was, according to an appellate amicus brief by the Equal Employment Opportunity Commission, one of the only women to have made the management ranks at Reema in many years.

Two weeks after Parker’s last promotion, a male employee who had started at the company at the same time – but hadn’t matched her fast trajectory – started a rumor that she was having an affair with the boss who had promoted her. The rumor wasn’t true, but it swept through the warehouse where Parker worked. The highest-ranking manager at the warehouse helped spread the gossip, asking Parker’s boss, “Hey, you sure your wife ain’t divorcing you because you’re fucking her?” That same manager allegedly slammed the door on Parker when she tried to attend a staff meeting to confront the rumors and subsequently blamed her for the turmoil in their office. He told her she’d never get another promotion from him and, later, that he should have fired her when she first started complaining.

Parker went to the company’s human resources department with sexual harassment claims against the man who started the false rumor and the boss who blamed her for it. The company said in its brief to the 4th Circuit that it called a meeting of warehouse managers, including Parker, to defuse the conflict. It also ordered sexual harassment training for all employees. Nevertheless, the top warehouse manager abruptly fired Parker in May 2016, claiming that she had created a hostile work environment for the employee who originated the fake rumor about her and that she was insubordinate to her boss, the man who'd told her she should have been fired.

Parker sued, claiming sex discrimination and retaliation. U.S. District Judge Roger Titus of Greenbelt, Maryland, dismissed her case from the bench in 2018, concluding that the bullying and harassment she experienced was not based on her sex. “The problem for Ms. Parker is that her complaint as to the establishment and circulation 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,” Judge Titus said. “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’s based upon false allegations of conduct by her.”

It’s a mark of the injustice of that ruling that both the EEOC, which hadn’t appeared at the trial court level, and a coalition of nearly 50 women’s and equal rights groups from across the country filed amicus briefs backing Parker. Her own lawyers from the Washington Lawyers’ Committee for Civil Rights and Urban Affairs argued in their appellate brief that the hostility directed at Parker was obviously based on her sex. “The rumor originated in a male subordinate’s jealousy that Ms. Parker was advancing faster than her male counterparts, and the rumor itself concerned content that was by its very nature related to her sex,” the brief said. “The reaction of her superiors to the rumors — namely, the disparate discipline and escalated hostility that resulted — further demonstrated the gender-related nature of the workplace harassment. … The hostile treatment suffered by Ms. Parker was impermissibly grounded in traditional sex stereotypes regarding a woman’s advancement and role in the workplace.”

The 4th Circuit agreed in Friday’s ruling, reviving Parker’s case and sending it back to the trial court. “The rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion,” wrote Judge Paul Niemeyer for a panel that also included Judges Steven Agee and Albert Diaz. “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.” Based on these implacable stereotypes, the court said, Parker plausibly alleged that she had suffered harassment because she is a woman.

Two other federal circuits, as the 4th Circuit pointed out, have already said women could base sex discrimination claims on rumors of an affair with the boss. In 1994’s Spain v. Gallegos, the 3rd Circuit held that a Pittsburgh EEOC investigator adequately pled Title VII claims that she was wrongly denied advancement because of false rumors of an affair with her boss. And in 1996’s McDonnell v. Cisneros, the 7th Circuit said, albeit in dicta, that “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.”

The 4th Circuit’s holding is more straightforward than the previous rulings. It’s also based on less complicated factual allegations, which could make its conclusion more broadly useful to other women who’ve felt harassment like Parker’s. We should undoubtedly celebrate the appellate confirmation that, in the words of Parker counsel Dennis Corkery of the Washington Lawyers’ Committee, it’s sex discrimination to indulge the stereotype that women are valuable to employers only because of their sexuality. “Saying that’s the only reason a woman gets promoted shows women are not valued for their work,” he said.

So why am I a little worried about the 4th Circuit decision? Two reasons. First, I can envision a similar scenario involving a man who experiences workplace harassment based on rumors that he received a promotion because of his relationship with a female boss. (Or, for that matter, a gay man who’s taunted because of rumors that he advanced his career by sleeping with a male boss.) We know from the Supreme Court’s Oncale ruling that men can sue for sex harassment. Should they also be able to sue for discrimination if they’re demeaned for succeeding only because they slept with the boss? As the 4th Circuit framed its ruling in the Parker case, they could not because the 4th Circuit said only women, not men, are victimized by the stereotype of using their sexuality to advance their careers.

And then there’s the matter of whether a woman is actually sleeping with her boss. In all three of the cases considered by federal circuits, women were falsely accused of having affairs. But as we all know, life is complicated and office affairs happen. I can easily imagine a situation in which a woman receives a promotion that’s entirely unrelated to her sexual relationship with a supervisor, yet experiences taunts and bullying by co-workers who say she advanced only because she’s sleeping with the boss. Can she sue for sex discrimination under the 4th Circuit’s Parker decision? If not, aren’t we reinforcing stereotypes about virtuous and unvirtuous women?

Ultimately, I’m convinced, women can’t be equals at work unless colleagues apply the same standards to both sexes. If you harbor thoughts that a woman received a promotion because of her sexuality, ask yourself if you’d make the same assumption about a man with a female boss. If you think a man’s sex life is his own business, give women the same leeway. Judge all of your co-workers by what they do when they’re at work.

The 4th Circuit’s ruling in the Parker case presumes that workplaces are all tainted by the presumption that only women sleep their way to success. I’m glad Evangeline Parker will get a chance to bring her sex discrimination claims against Reema. But I’m really looking forward to the day years or decades hence when an appeals court says the underlying stereotype no longer holds.