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Title VII claims failed due to failure to immediately report harassment


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lmallory

By Laura Mallory

During his employment, an employee was teased by male co-workers about the employee’s alleged interest in a female coworker. The teasing was in the form of jokes, which the employee reported to his human resources department. An investigation was performed and it was ultimately determined that the jokes did not amount to sexual harassment but the employee was directed to report any further incidents of harassment to human resources “immediately.” The employee was reassigned to a new team and experienced additional harassment. First, he was poked in the buttocks, then he was slapped in the buttocks on two separate occasions and lastly, he was grabbed between his legs. All of these incidents were performed by the same male coworker over approximately a ten-day period. The employee told his coworker to stop but did not report any of those incidents until a few days after the last incident. 

The day after the employee complained he and his alleged harasser were issued unrelated disciplinary write-ups. The employee wrote his superior an email accusing the company of retaliating against him for reporting sexual harassment by a coworker. After investigating the basis for the disciplinary action, his supervisor withdrew the write-up and apologized. The next day, the employee and his coworker were fired. The employer gave four reasons for the employee’s termination: (1) failing to immediately report incidents of harassment; (2) failing to report incidents of harassment to his immediate supervisor; (3) obsessively tracking the performance, timeliness and conduct of his coworkers and (4) insubordination. The employee filed a complaint.

Discrimination
Title VII prohibits discrimination against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex or national origin. Title VII also prohibits hostile work environments which are severe and pervasive enough to affect the terms and conditions of employment.

While same-sex harassment claims are cognizable until Title VII, the conduct must actually constitute discrimination because of sex. The Court noted that it is easier to draw the inference of discrimination in cases of opposite-sex harassment because it is reasonable to assume the proposals of sexual activity would not have been made to someone of the same sex. However, in same-sex harassment cases involving proposals of sexual activity, the Court mentioned there needs to be some evidence that the harasser was homosexual. 

The Court found there was no evidence to support the employee was harassed because of his sex. Specifically, the court explained there was no evidence to support that the coworker was homosexual, nor was the behavior so explicit that a trier of fact could reasonably draw that conclusion, nor was there a general hostility to the presence of men in the workplace. The Court concluded that while the employee argued that the complained of conduct had sexual overtones, the United States Supreme Court has ruled that is not enough. The Court cited another court’s decision in which that court stated: “Sexual horseplay differs from sex discrimination, and Title VII covers only discriminatory conduct.”

Retaliation
In order for the employee to be successful in a retaliation claim, he must prove he suffered an adverse employment action because of his statutorily protected activity. The Court held that because the employee’s complaints to human resources did not concern the type of conduct that Title VII prohibits, he could not prove a claim of retaliation. As such, the employee’s claim failed for lack of evidence that he engaged in protected activity.



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