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Exposure to supervisor’s sexual misconduct with others does NOT create Title VII liability


May 27, 2021 by Tom Roberts, Esq.

Can I sue my employer for a hostile work environment when I witness the boss having sex with a co-worker and giving my co-worker preferential treatment?

Probably Not.

Under Title VII, an employer is prohibited from discriminating against any individual with respect to his/her compensation, terms, conditions, or privileges of employment because of his/her race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2 (a)(1) . For Plaintiff to state a claim of hostile work environment, she must show that

  • (1) she belonged to a protected group;
  • (2) she was subjected to unwelcome harassment;
  • (3) the harassment was based upon sex;
  • (4) the harassment affected a term, condition, or privilege of her employment; and
  • (5) the employer knew or should have known of the harassment and failed to take proper remedial action.
The discrimination must be based upon your sex and not the sex of others.

The third element requires that the harassment be based on Plaintiff’s sex and not the sex of others.  The underlying issue is whether members of one sex are subjected to unfavorable conditions of employment when members of the opposite sex are not subjected to unfavorable conditions. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). To succeed, a plaintiff must demonstrate that she was “singled out” for harassment because of her gender. Williams v. City of Kansas City, 223 F.3d 749, 755 (8th Cir. 2000) (citations and quotations omitted). The content of the harassment may not be “tinged with offensive sexual connotations,” but must be motivated because of the gender of the alleged victim. Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063, 1068 (8th Cir. 2005) (quoting Oncale, 523 U.S. at 81 (1998)).

Conduct must be severe or pervasive enough to create an objectively hostile or abusive environment to a reasonable person.

“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview.” Oncale, 523 U.S. at 81 (internal quotation omitted). In determining whether the conduct is sufficiently severe or pervasive the Court looks to the totality of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).

When the workplace is a “sexual playground” or that there is a “culture of sex play” at the workplace.

What if employee is offended by the sex play towards others and the “sexual playground” results in inefficiency among the workers and burdens the employee.

YOUR CLAIM PROBABLY FAILS —- Judge Richard Dorr in the Eighth Circuit examined such a claim and found that the employee did not have a Title VII claim for a hostile work place based upon sex.    It stated:

The “sexual playground” that Plaintiff complained about to her superiors was not directed at her. It affected her, Plaintiff stated in her own deposition testimony, because it made her work more difficult–she would have to pick up the slack when her employees would go off to play. However, these facts do not support Plaintiff’s hostile work environment claim because Plaintiff did not suffer harassment that affected a term or condition of her employment based on her sexsexual harassment claim requires Plaintiff to prove that she was “singled out because of her gender.” Williams v. City of Kansas City, Mo., 223 F.3d 749, 753 (8th Cir. 2000) (citations omitted); see Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997) (“The plaintiff must show that the conduct was discriminatory in nature and that she was singled out for such treatment on the basis of her membership in a protected class.” (citations omitted)); see also Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 843 (8th Cir. 2002) (stating that the victim of a racially hostile work environment must show that he was the “target of severe or pervasive harassment”). Plaintiff was not the “target” of this activity. If anything, because of the “sexual playground,” Plaintiff was singled out not because she was a woman, but because she was a supervisor–the “playground” required Plaintiff to do more work to pick up the slack of the employees who were “planning their next sexual conquest.” The same problem would arise if Plaintiff had been a male supervisorThus, this activity, about which Plaintiff claims to have constantly complained to her superiors, cannot be the basis for her sexual harassment claim. In the same way, Plaintiff is not discriminated on the basis of her sex because her co-workers provided paramours with special preferences, making her job more difficult. See DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 308 (2d Cir. 1986) (holding that male candidates for a promotion could not sue for discrimination under Title VII when the supervisor tailored the position to favor his paramour, because they “faced exactly the same predicament as that faced by any woman applicant for the promotion: No one but [the supervisor‘s paramour] could be considered for the appointment because of [his] special relationship to” the paramour).
Long v. Aramark Unif. & Career Apparel, Inc., No. 03-3425-CV-S-RED, 2005 U.S. Dist. LEXIS 37631, at *25-27 (W.D. Mo. Apr. 29, 2005)


RETALIATION:  An employee must show that BUT FOR protected complaints under Title VII, she would not have been fired.  It is not enough to show that it was A MOTIVATING FACTOR.

With Univ. of Tex. Sw. Ctr. v. Nassar, 133 S. Ct. 2517, 186 L. Ed. 2d 503 (2013). the Supreme Court changed the Title VII retaliation landscape, holding that the protected conduct must be the but-for cause of the retaliatory actNassar, 133 S. Ct. at 2528. The Supreme Court so held based on Title VII‘s use of the phrase “because of,” which, per the Supreme Court, plainly means “but for.” See
EEOC v. A.C. Widenhouse, Inc., 576 F. App’x 227, 230-31 (4th Cir. 2014)

Save for situations in which the adverse employment decision follows the protected activity “very close[ly],” “mere temporal proximity” between the two events is insufficient to satisfy the causation element of the prima facie requirement. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001) (per curiam) (internal quotations omitted). Although neither we nor the Supreme Court have adopted a bright temporal line, we have held that a three- or four-month lapse between the protected activities and discharge was “too long to establish a causal connection by temporal proximity alone,” Pascual v. Lowe’s Home Ctrs., Inc., 193 F. App’x 229, 233 (4th Cir. 2006) (unpublished).
Perry v. Kappos, 489 F. App’x 637, 643 (4th Cir. 2012)


An employee who files complaints with a company complaining of a hostile work environment based upon sex, when that conduct is not directed at her may NOT be protected from termination, because the employee’s belief is not an OBJECTIVELY REASONABLE BELIEF. 

Magistrate Judge Douglas E. Miller in the Norfolk Federal District Court stated not all complaints of discrimination under Title VII is protected against retaliation: 

Title VII bars retaliation against employees who oppose any employment practice made unlawful by the Act, as well as actions that an employee “reasonably believes [to be] unlawful.” Jordan v. Alt. Res. Corp., 458 F.3d 332, 338 (4th Cir. 2006) (emphasis omitted); 42 U.S.C. § 2000e-3. As a result, a party that reasonably, but incorrectly, believes that the conduct she opposed was unlawful engages in protected activity for purposes of Title VIIHart v. Cmty. Grp., Inc., 3:08cv175 (unpublished), 2008 U.S. Dist. LEXIS 34651, 2008 WL 1924031, at *3 (E.D.Va. April 28, 2008) (citing Darveau v. Detecon, Inc., 515 F.3d 334, 340-41 (4th Cir. 2008)). But the reasonableness of an employee‘s belief is evaluated objectivelyClark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001) (per curiam); Jordan, 458 F.3d at 340-41. Thus, employees who oppose practices not made unlawful by Title VII do not engage in protected activity unless their belief that the practice was unlawful under the Act is objectively reasonable. Breeden, 532 U.S. at 270. Unlike opposition, when the protected activity alleged is participation in Title VII proceedings, that activity is protected regardless of whether the activity is reasonable. Cumbie, 302 F. App’x at 194 (citing Glover v. S.C. Law Enforcement Div., 170 F.3d 411,413-15 (4th Cir. 1999)).
Williams v. Ocean Beach Club, LLC, No. 2:11cv639, 2012 U.S. Dist. LEXIS 137554, at *10-11 (E.D. Va. Sep. 25, 2012)


CAUTION – Filing an action that is frivolous, unreasonable or without foundation, even though not intended in bad faith can result in attorney’s fees awarded against you!

Under Title VII, “the court, in its discretion, may allow the prevailing party…a reasonable attorney’s fee (including expert fees) as part of the costs….” 42 U.S.C. § 2000e-5(k). An award of attorneys’ fees to a defendant is permissible “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978).
Farmer v. Navy Fed. Credit Union, No. 1:11cv691 (LMB/IDD), 2012 U.S. Dist. LEXIS 110318, at *5 (E.D. Va. Aug. 3, 2012)


The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.


Thomas H. Roberts & Associates, P.C.
105 S 1st Street
Richmond, Virginia 23219
(804) 783-2000
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