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Sexual Innuendos and Gossip Can Create a Hostile Work Environment

Being the subject of malicious gossip or innuendo in the workplace can sabotage your relationships with coworkers and impede your career prospects. But can this behavior actually rise to the level of a hostile work environment under the law and provide the basis for a sexual harassment claim? According to several cases from around the country, the answer is yes - if adequately supported, evidence of rumors, innuendo, and gossip can demonstrate actionable gender-based discrimination.

False Rumors and Sexual Harassment

In the recent decision of Parker v. Reema Consulting Services, the U.S. Court of Appeals for the 4th Circuit determined that a false rumor circulated about Evangeline Parker, a female warehouse manager, could be enough to sustain claims of sex discrimination, harassment, and retaliatory discharge against her employer. The rumor, initiated by a male co-worker, insinuated that Ms. Parker was promoted because she had sex with her male superior and not based on merit, and she was advised she would not be promoted because of the rumor. Ms. Parker was then subjected to what she felt was a pattern of harassment and humiliation by her superiors and co-workers. After she complained to human resources about the hostile work environment, the company terminated her employment.

Ms. Parker then sued her former employer. After the trial court ruled against her, she appealed, arguing that the company (through its agents, including the highest-ranking manager at the facility) actively participated in the circulation of the rumor and took action against her because of it.

The 4th Circuit agreed and expressly rejected the employer's defense that what she suffered was not harassment based upon gender, but a response to her alleged inappropriate conduct (having sex with her superior for financial gain or advancement), spotlighting longstanding biases and harmful misconceptions:

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 [sic] as "sluts" or worse, prostitutes selling their bodies for gain.

The Court cited a 7th Circuit opinion and a 3rd Circuit decision that similarly upheld the viability of sexual harassment and retaliation claims by women subjected to rumors they had advanced their careers by having sex with superiors rather than on merit.

Acceptance of Gender-Based Stereotyping as Discrimination Is Growing

The Parker court also pointed to Price Waterhouse v. Hopkins, a U.S. Supreme Court case noting that gender stereotypes can give rise to sex discrimination. Nichols v. Azteca Restaurant Enterprises, Inc., a 9th Circuit opinion from 2001, addressed this particular issue, finding that verbal abuse directed at a male plaintiff for acting too effeminate was sex-based stereotyping sufficient to support a harassment claim under Title VII. A year later, that same court held in Costa v. Desert Palace, Inc. that a woman who claimed she was repeatedly criticized and retaliated against for failing to conform to traditional gender stereotypes in the workplace had presented sufficient evidence for a jury to infer sex-based harassment and discrimination.

This line of thinking is not limited to federal courts. In 2017, a California state appellate court ruled in Husman v. Toyota Motor Credit Corp. that a plaintiff subjected to discrimination based on gender-based stereotypes had sufficient grounds to claim a violation of the California Fair Employment and Housing Act. That case involved an openly gay male, terminated by his employer, who claimed his supervisor harbored stereotypical views of homosexual men and voiced clear opinions as to what he considered appropriate gender identity expression. The trial court dismissed the lawsuit, but the court of appeals reversed, finding there was a triable issue of fact as to whether impermissible bias played a role in the company's decision to terminate the plaintiff.

Changing Interpretation and Expansion of Protections

As societal norms and social acceptance evolve, so do interpretations of laws protecting against workplace harassment based on gender, sexuality, gender identity, and gender- or sex-related stereotyping. Attorneys, legal scholars, the media, employers, and affected workers continue to challenge legal precedent and develop new standards that help ensure safe, non-discriminatory workplaces across the country.

We will continue to monitor and report on these developments.

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