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Workplace Sexual Rumors as Gender Bias Set for 10th Cir. Debate

Jan. 14, 2021, 11:16 AM

A federal appeals court in Denver will consider whether false rumors about a professor having a sexual relationship with a student are sufficiently related to his gender to be covered by federal anti-discrimination law.

Counsel for Ron Throupe will try to convince the U.S. Court of Appeals for the Tenth Circuit to revive his hostile work environment claim against the University of Denver during oral argument Thursday. The lower court that threw out the claim said the rumors applied to both Throupe and the student—whom he later legally adopted—and therefore wasn’t based on gender.

The case gives the Tenth Circuit a chance to directly rule on workers’ protections against harassment fueled by sexual rumors, which has divided federal courts across the country. While the case involves alleged sexual harassment in violation of Title IX of the 1972 Education Amendments, that law follows the same legal standards as Title VII of the 1964 Civil Rights Act, which prohibits bias in the workplace.

The dispute between Throupe and the University of Denver may also test the extent that courts will embrace a broader conception of the “because of sex” requirement for gender bias in light of the U.S. Supreme Court’s landmark 2020 ruling in Bostock v. Clayton County, which said Title VII protects gay and transgender workers from job discrimination.

The high court in 2019 rejected a request to consider whether smears relating to sexual conduct are necessarily based on gender, meaning the rumors could violate Title VII, or if they’re rooted in conduct that would fall outside of the law’s scope.

Some courts, like the Third and Fourth circuits, have adopted the former view, while courts like the Second Circuit have taken the latter. The Seventh Circuit appears to have an intra-circuit split on the issue.

“Courts really struggle with the ‘because of sex’ requirement,” leading some to create “too high of a bar” for sexually hostile work environment claims, said Wendy Hess, a University of South Dakota law professor who’s written about discrimination law and sexual rumors.

Sexual harassment lawsuits often involve two people of different genders, Hess said. Throwing harassment claims based on rumor out of court for not being sufficiently related to gender is similar to tossing cases based on the “equal opportunity harasser” defense, which excuses sex-based discrimination if it targets both male and female employees, she said.

Throupe’s lawyer, Nathaniel Smith, said the Supreme Court has made it clear that “sex is supposed to be off the table for employers,” prohibiting them from treating workers differently due to their gender.

The University of Denver’s attorney, Jim Goh of Constangy Brooks, Smith & Prophete, didn’t respond to requests for comment.

False Rumors, Humiliation

Throupe’s lawsuit against the University of Denver stems from the allegedly hostile environment created by rumors that he was having an extra-marital affair with Xue Mao, a graduate student who worked with him as his teaching and research assistant.

Mao and Throupe developed a close personal and professional relationship, according to court papers. Throupe and his wife adopted Mao after she failed to obtain a long-term visa to stay in the U.S.

Throupe claimed that staff, administrators, and fellow professors spread false and humiliating gossip about his relationship with the student and supervisors took disciplinary action against him. He sued the school in 2017.

U.S. District Judge Marcia Krieger, a George W. Bush administration appointee, tossed Throupe’s lawsuit last year. In addition to other legal and factual problems with his allegations, Krieger said the rumors didn’t qualify as harassment directed at Thoupe because of his sex.

Without the rumors, Throupe’s “hostile environment claim crumbles,” Krieger said in her ruling.

Krieger mostly relied on Pasqua v. Metropolitan Life, a 1996 ruling from the Seventh Circuit that rejected the theory that the rumors constituted harassment based on the plaintiff’s sex. Krieger also cited Duncan v. Manager, Department of Safety, a 2005 ruling by the Tenth Circuit that she said reflected its “endorsement of this line of reasoning.”

Gender Stereotyping

But Throupe attempted to differentiate Pasqua and Duncan from his lawsuit. Those cases didn’t involve an older man who was subject to salacious rumors about an affair with a younger woman that was based on gender stereotypes about roles and behavior, he said in a brief to the Tenth Circuit.

Throupe filed a second brief after the Supreme Court’s Bostock ruling that doubled-down on his argument that the rumors were based on sex due to gender stereotypes. The high court’s ruling created a new test that liability for sex discrimination can be determined simply by asking if the worker would have been treated the same regardless of his or her gender, he said.

“Simply put, the facts of this case raise a genuine question of fact about whether Appellees would have treated Throupe differently had he been a woman with a close personal and professional relationship with a female student,” according to his brief.

The University of Denver said in its brief that Throupe has improperly changed his theory of the case to focus on improper gender stereotyping and raised novel arguments.

“If a theory or argument was not presented to the District Court—or was presented in only a vague or underdeveloped manner—it is generally considered forfeited on appeal,” the university said.

But even if Throupe can raise his gender stereotyping arguments and show the rumors were based on his sex, his lawsuit would still fail, the school said. The district court also said the alleged harassment wasn’t severe or pervasive enough to trigger liability, it said.

The panel handling the case is composed of Circuit Judges Timothy Tymkovich, a George W. Bush administration appointee, David Ebel, a Reagan administration appointee, and Robert Bacharach, an Obama administration appointee.

The case is Throupe v. University of Denver, 10th Cir., No. 20-1069, oral argument 1/14/21.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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