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Courts take note of sex stereotyping in #MeToo era


A federal appeals court ruling that reinstates sex discrimination and retaliation claims filed by a woman who was allegedly fired because of a false rumor she slept with her male boss reflects changing judicial attitudes towards sex stereotyping, which have been influenced by the #MeToo movement, say many experts.

Evangeline Parker began work at Reema Consulting Services Inc.’s warehouse facility in Sterling, Virginia, in December 2014 as a low-level clerk and was promoted six times, ultimately rising to the position of assistant operations manager in March 2016, according to the Feb. 8 ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, in Evangeline J. Parker v. Reema Consulting Services Inc. 

A false rumor attributing Ms. Parker’s success to a sexual relationship with a higher-ranking manager, which originated with an apparently jealous underling, was spread by the warehouse’s highest-ranking manager.

In late April, when she arrived a few minutes late for a mandatory all-staff meeting, this manager slammed the door in her face and locked her out of the meeting where, she later learned, the rumor was discussed.

Ms. Parker was terminated in May 2016 and filed suit against the company on charges including a hostile work environment and retaliatory termination under Title VII of the Civil Rights Act of 1964.

The U.S. District Court in Greenbelt, Maryland, dismissed the case after determining that the harassment was based not on gender but upon false allegations of her conduct. It also concluded the alleged harassment was not severe or pervasive.

These charges were unanimously reinstated by a three-judge appeals court panel. The company’s argument that the rumor was not “gender specific” does not take into account all the complaint’s allegations, “particularly those alleging the sex-based nature of the rumor and its effects,” said the ruling.

“In short, because ‘traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society’ and ‘these stereotypes may cause superiors and coworkers to treat women in the workplace differently from men,’ it is plausibly alleged that Parker suffered harassment because she was a woman,” said the ruling in citing earlier cases. The ruling also held the harassment was severe or pervasive.

Experts note the ruling was in response to a motion to dismiss, which means — for now — the court accepts all the plaintiffs’ allegations as true, and different facts may emerge once the company presents its case.

The case generated dozens of amicus briefs in support of Ms. Parker from the U.S. Equal Employment Opportunity Commission and various advocacy groups, including women’s rights organizations.

Given the number of amicus briefs and “the amount of attention on these topics ever since the #MeToo movement started over a year ago, I’m not particularly surprised by the result here,” said Jeffrey D. Polsky, a partner with Fox Rothschild LLP in San Francisco.

The ruling reflects a growing trend that courts are “more attuned to the nuanced argument” that sex-based stereotypes can cross over into harassment than might have been the case a decade ago and is well illustrated in this ruling, said Gerald L. Maatman Jr., a partner with Seyfarth Shaw LLP in Chicago,

It reflects “a growing trend in the way in which federal courts treat these sorts of allegations, and kind of shines the spotlight in the #MeToo era of courts taking these sorts of claims very seriously,“ he said.

Gerald T. Hathaway, a partner with Drinker Biddle & Reath LLP in Philadelphia, said “it may well be true” that the appeals court was influenced by the #MeToo movement. “I cannot believe there was a lawyer in the room when she was fired. I’m just scratching my head about that one,” he added.

He said he anticipated this case “will get cited quite a bit.”

Philip K. Miles III, a shareholder with McQuaide Blasko in State College, Pennsylvania, said, “What makes this case a little bit different is we’re dealing with the types of teasing or stereotyping or gossips or rumors that previously employers did not view as rising to the sexual harassment level.”

Employers are now on notice to address these issues, he said.

Robin E. Shea, a partner with Constangy Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina, said “it’s good for employers to be aware of” this case because people tend to view sexual harassment as always involving dirty jokes, sexual propositions or actual physical, sexual advances.

“It’s important for people to understand it can go way beyond that,” she said.

“The ruling gives guidance to courts as to what facts are acceptable as coming within the requirements of the law,” although it does not expand the law, said Dona S. Kahn, of counsel with Anderson Kill P.C. in New York.

This is an issue “that hasn’t been addressed by a number of courts, so any time courts provide guidance on what employers can do to help them prevent a hostile work environment,” it is useful, said Mr. Polsky.

However, the court’s finding is neither novel nor attributable to the #MeToo movement, said Michelle I. Anderson, a partner with Fisher & Phillips LLP in New Orleans. For many years, she said, she has conveyed in supervisory training sessions that rumors can constitute sexual harassment.

Firms should train their employees not to use sex stereotyping when making decisions that affect workers’ terms and conditions of employment, said Amy Epstein Gluck, a partner with FisherBroyles LLP in Washington. “Sex stereotyping is a form of sex discrimination. It’s just as illegal,” she said.

“This would never have happened if the managers that were involved in this had been trained on what’s appropriate in the workplace and what is not,” said David Miklas, a Fort Pierce, Florida-based employer attorney.





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