Sexual harassment takes many forms, and a federal appeals court recently ruled that office gossip can be a form of harassment when left unchecked by management, causing real damage to a female victim.
Soon after a woman employee was promoted to be assistant operations manager at a company’s warehouse, men working at the facility began spreading a rumor that she obtained her promotion by having sex with her male supervisor.
At one point, another manager in the facility, in earshot of other employees, told the manager who had promoted the woman that he was surprised the promoting manager’s wife wasn’t divorcing him for having sex with the woman. The man who promoted her wasn’t much help, either. At an all-hands meeting to discuss the rumor, he slammed the door in her face and wouldn’t let her enter the room.
The woman eventually was told that because of the rumor she could not advance any further at the company, then was screamed at by the highest-ranking manager (also male), who told her she should have been terminated when the rumor first arose. After she filed a discrimination claim, the company fired her.
She brought suit but a district court dismissed it, holding that the rumor and its effects did not represent “sex-based” harassment. The court said the rumor and its circulation did not involve sex (gender) discrimination because it was based on the woman’s alleged conduct and not her gender.
After she appealed the case, a unanimous three-judge panel of the U.S. Fourth Circuit Court of Appeals responded to the district court’s argument by stating unequivocally: No way.
The Appeals Court judges relied in part on an earlier Supreme Court decision which established that sex stereotyping definitely is a form of illegal sex discrimination.
The three-judge panel pointed out that only men created and spread the rumor, which promoted the stereotype of a woman using sexual wiles to advance herself. They also noted that although she was told she would not be allowed to advance at the company and was later fired, the man who also was part of the rumor was not disciplined.
Attorney Amy Epstein Gluck of the FisherBroyles law firm observes, “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.”
To avoid this situation, Epstein Gluck says an employer must have a clearly written sexual harassment policy in employee handbooks that discusses specific misconduct, such as sexual or sexist jokes or innuendo, improper physical touching and quid pro quo types of harassment. The policy should be explicit and use examples, including possibly warning against rumors and sex stereotyping.
The handbook also should encourage and provide a written procedure for reporting complaints and explain that management will promptly investigate claims of harassment. “Then follow this policy,” she stresses. “Have clear standards for accountability and what merits discipline.”
The anti-harassment policy in the employee handbook should be disseminated throughout the organization, updated as needed and understood by all employees. Provide regular, interactive training not only to employees, but also to supervisors and human resources staff so they can recognize, respond to and prevent unlawful harassment.
Don’t forget to include senior leaders in the training and deploy them to promote training and anti-discrimination/harassment policies. She notes that by doing this top management can bolster commitment to the policies by encouraging employees to “follow the leader.”
Epstein Gluck warns, “Don’t let sex stereotyping fall through the cracks. We’ve seen it is becoming more and more prevalent as a basis for sexual harassment.”
