The U.S. Supreme Court Oct. 7 declined to consider whether a workplace rumor that a female employee “slept her way to the top” is enough for a federal sexual harassment claim.
Whether smears relating to a worker’s supposed sexual conduct can violate Title VII is “a recurring question of significant importance” that has divided the federal appeals courts, Reema Consulting Services argued in its petition for certiorari.
The U.S. Court of Appeals for the Fourth Circuit, below, revived Evangeline Parker’s Title VII case against the company. Like the Third and Sixth circuits, it held that rumors relating to sexual conduct are necessarily based on sex. The Second, Seventh, and Tenth circuits hold that such rumors are based on conduct, not sex, and don’t provide a basis for employer liability under Title VII, Reema said.
The rumors a jealous subordinate started about Parker may have been “sexually-explicit,” but they weren’t “gender-explicit,” the company said. They were fueled by a workplace rivalry, not Parker’s status as a woman, Reema said.
The sleeping-your-way-to-the-top put-down isn’t a statement “solely derogatory of woman,” it said. Sexual language doesn’t violate Title VII if it’s “indiscriminate,” the company said.
Parker argued in opposing review that the Fourth Circuit didn’t establish a per se rule that sexual rumors are always sexual harassment. There also is no circuit split on the issue or conflict with the justices’ decision in Oncale v. Sundowner Offshore Services, which set the guiding standard, she said.
The Fourth Circuit instead properly looked at the totality of the circumstances, which included a high-ranking male Reema manager spreading the rumor throughout the workplace, Parker said.
Wright, Constable & Skeen LLP represented Reema. Fish & Richardson P.C. and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs represented Parker.
The case is Reema Consulting Servs., Inc. v. Parker, U.S., No. 18-1442, certiorari denied 10/7/19.