Legal Affairs

Jeffrey P. Feuquay, Ph.D., Esq., Associate Editor

I recently ran across the following article by Rebecca M. Fowler in the Oklahoma Employment Law Letter, a newsletter published by Ms. Fowler's Tulsa, Oklahoma firm, Doerner, Saunders, Daniel & Anderson. Fowler's firm represents a number of public jurisdictions in Oklahoma. When I first moved to the small community in which I now live, I was warned, "At least there's no blackmail here . . . everyone already knows everything." That advice is reminiscent of many organizations, and makes the article all that much more important.

He Said, She Said: Workplace Rumors and Their Consequences

All good managers realize that rumors and gossip among and about co-workers disrupt the workplace. This is particularly true when the rumors allege affairs between co-workers or between an employee and a supervisor. Now some creative plaintiffs' lawyers are charging that rumors of this type constitute a form of hostile environment sexual harassment, and some courts are agreeing. Not all of these cases impose liability for rumors on the employer. The courts, however, are unanimous that blatant sexual misconduct is not necessary to prove a sexually hostile environment exists.

A female professor at the University of Iowa medical school, Dr. Jew, contended that she was the victim of a hostile working environment and sex discrimination caused by repeatedly circulated rumors that she had a sexual relationship with her department head and that she had received preferential treatment based on that relationship. Ultimately, the rumors led the other professors in her department to vote to deny Dr. Jew a promotion.

The court found that the harassment to which Dr. Jew had been subjected was sexual harassment prohibited by Title VII because not only was it sexual in content, but it had been directed at her on account of her sex. In reaching its conclusion that the rumors were directed at her because she is a woman, the court found that the rumors, which it determined to be false, accused her of physically using her sex as a tool for gaining favor, influence, and power with the male department head and suggested that her professional accomplishments rested on sexual achievements rather than on achievements of merit. The court further found that similarly situated males were not harassed. Although the court acknowledged that the sexual relationship rumors also implicated the male department head, there was no suggestion that he was using a sexual relationship to gain favor, influence, or power with an administrative superior.

The court also found that the damage to Dr. Jew's reputation resulting from the sexual harassment had a concrete impact in her workplace. Not only was the nature of the speech regarding Dr. Jew highly offensive to her, but the pervasive nature of the rumors directly affected the vote of faculty members who considered and denied Dr. Jew's promotion.

A similar determination was made by a Pennsylvania federal court. In this case, Spain, a female investigator in the Pittsburgh Equal Employment Opportunity Commission (EEOC) office asserted that she was subjected to a hostile working environment and her male superiors passed her over for promotions in favor of less qualified male applicants as a result of rumors. At the base of Spain's sexual harassment and discrimination claims were the rumors that circulated in the Pittsburgh EEOC office that she was having an affair with her male supervisor. The rumors originated because the supervisor frequently demanded loans from Spain (in return for promises of promotions), causing him to seek her out privately in his office or the cafeteria or to leave the office, and this behavior was observed by other employees. These rumors allegedly led Spain's fellow employees to shun her, and her supervisors to evaluate her poorly for advancement purposes and ultimately to deny her a promotion.

Spain alleged that she was treated as an outcast by other employees, who warned each other to stay away from her because she was the boss's lover. One of Spain's evaluating supervisors admitted that he graded Spain low on the "integrity" category of the evaluation because of his perception of her conduct with her supervisor based on the rumors and his observations. Spain ranked dead last among candidates for a particular promotion because of her consistent "inability to relate effectively with the supervisor, coworkers and others" even though she had outstanding skills in administrative matters.

The trial court dismissed the case in favor of the employer, finding that Spain's poor ratings related to sexual activity, not gender, and refused to admit evidence of the rumors because there was no additional evidence that male employees who did the same thing were treated differently. The appeals court disagreed. It found that a jury could reasonably conclude that if Spain had been a man, rumors would not have started that she had gained influence through physically using her sex, particularly the ability to create problems for a fellow employee who rubbed her the wrong way. The court further determined that while it was true that the rumors also implicated a male supervisor, the rumors did not suggest that his involvement in the alleged relationship had brought him additional power in the workplace over his fellow employees.

The Tenth Circuit Court of Appeals, the court to which Oklahoma federal court cases are appealed, has also addressed claims resulting from rumors in the workplace.

Winsor, the only female member in the sales force of a car dealership, complained that a variety of actions in the workplace resulted in a hostile working environment. These actions included persistent rumors that she was having an affair with the sales manager and her success was attributable to that relationship. The district court denied Winsor's claims, finding that the incidents she alleged were not sexual harassment because the mistreatment occurred for reasons unrelated to gender. Specifically, the court found that Winsor's mistreatment by co-workers was motivated by jealousy, dislike, and anger at the perceived preferential treatment she received based on her special relationship with the sales manager. Because the court found this motivation behind the mistreatment of Winsor to be gender-neutral, it found that she had not been sexually harassed.

Although the appeals court generally disagreed with the findings of the trial court, it determined that the rumors did not rise to the level of sexual harassment. The court noted that Winsor and her sales manager had been caught in a sexual relationship by the manager's wife and that this information became public knowledge at the dealership. The court then went on to find that although there was a sexual nature to the rumors of the relationship and the statements attributing Winsor's success to such a relationship, the district court's finding that the rumors and comments were gender-neutral was not clearly erroneous. The appeals court distinguished Winsor's claim from Dr. Jew's claim because in that case there was no basis for the rumors other than Dr. Jew's gender. The court distinguished Spain's claim on the basis that the rumors in that case were created and perpetuated by improper conduct by her supervisor.

The most recent case addressing hostile environment caused by rumors comes from an Illinois federal court. Pasqua, a branch manager and long-term MetLife employee, reported to his regional manager that rumors were circulated in his branch office and other MetLife offices that he was engaged in an affair with a subordinate sales representative and was showing favoritism to her as a result of the relationship. Pasqua claimed that he had been subjected to sex discrimination because he was required to work in a hostile or abusive environment and that he was demoted in retaliation for complaining about the rumors. The trial court dismissed the case in favor of MetLife, and the appellate court affirmed that judgment.

The appeals court reiterated that a prima facie case of sexual harassment requires a showing that but for the employee's sex, he or she would not have been the subject of harassment. If men and women in the same setting do not receive disparate treatment, the harassment is not actionable because it is not based on sex. The court, finding that there was "not even a hint" that any of the rumors concerning an illicit relationship between Pasqua and his subordinate began because Pasqua is a male, affirmed that Pasqua's claim fell short of establishing that the alleged harassment was based on his sex. Acknowledging that someone might spread rumors in the workplace simply because someone else is of a particular gender, the court determined that Pasqua's claim clearly did not fall in that category.

Taken together, the courts' decisions regarding claims that rumors of romantic or sexual relationships in the workplace constitute sexual harassment appear to have established what must be proved in order for rumors to be actionable under Title VII. First, the rumor must include an implication that the employee is using his or her sex to advance the employee's position in the workplace. Second, the rumor must be false.

Your experience probably tells you that few workplace rumors will meet this criteria. Your experience will also tell you, however, that evaluating each and every rumor of a relationship that circulates in your workplace is a time-consuming, disruptive task, and defending claims, even baseless claims, is an investment that produces no return. The first line of defense is simple: make it clear to your employees that rumors can rise to the level of harassment and, as with other forms of harassment, they will not be tolerated.

Reprinted with permission from the April, 1997, Oklahoma Employment Law Letter, edited by Doerner, Saunders, Daniel & Anderson, Tulsa, Oklahoma, (918) 582-1211, and published by M. Lee Smith Publishers. For subscription information, please contact the publishers at 800-274-6774.

See you in court. Jeff Feuquay

Jeff may be reached at P.O. Box 706, Perry, OK 73077-0706; Phone: (580) 336-4908; Fax (580) 336-5366; Net: jeff@feuquay.com. If there is a topic that you would like to see addressed in this column please let him know.