Labor & Employment Law Daily Being required to arrange female escorts for supervisor not enough for Title VII claim
Tuesday, March 19, 2019

Being required to arrange female escorts for supervisor not enough for Title VII claim

By Lorene D. Park, J.D.

Uncomfortable though it was for a chief financial officer to go to strip clubs with his married boss and arrange for female escorts, it did not create an actionable hostile environment and the alleged adverse actions were not because of his gender.

A male executive allegedly forced to participate in “immoral conduct” that made him extremely uncomfortable, such as arranging female escorts for his supervisor and “facilitating” the latter’s infidelity, had his claims tossed because his supervisor’s actions did not violate Title VII or the Pennsylvania Human Relations Act (PHRA). Granting the employer’s motion to dismiss, a federal court in Pennsylvania found that the employee failed to allege an adverse employment action taken because he is a man. He didn’t claim any gender-related comments by the supervisor and though he said female executives weren’t expected to be complicit in his boss’s immoral behavior, none of those executives were similarly situated. The retaliation claim failed as well (Butto v. CJKant Resource Group, LLC, March 13, 2019, Leeson, J., Jr.).

Helping the boss cheat. According to the employee, his direct supervisor “ordered [him] to organize rendezvous and dalliances with female companions, which would align with [the supervisor’s] work/travel schedule.” The employee was also allegedly forced into uncomfortable situations with his supervisor, such as going to strip clubs, searching for women on the internet, and meeting escorts while on business trips. At one point, the employee was required to set the supervisor up with an online dating profile even though the supervisor was married.

The employee alleged that all of these duties fell outside the scope of his job title as Chief Financial Officer, and that the supervisor neither expected nor required similarly-situated female employees to be complicit in such conduct.

Fired after complaining. When the employee complained about being required to facilitate the supervisor’s infidelity, he was fired on the spot. He sued, alleging a hostile work environment, sex discrimination, and retaliation in violation of Title VII and the PHRA.

Not because of gender. Dismissing the suit, the court found that the employee failed to sufficiently allege that he suffered an adverse employment action because of his gender. The complaint did not allege any gender-related comments and though the employee alleged that the supervisor didn’t expect female executives to be complicit in his infidelity, none of those executives, who worked in different areas and held different titles, were similarly situated. Thus, the employee couldn’t show sex discrimination.

Environment not hostile enough. And while the employee had to work in an environment that he found uncomfortable, he didn’t allege that the supervisor’s conduct was severe or pervasive enough to support a hostile work environment claim. The supervisor was not physically or verbally threatening, intimidating, or abusive, noted the court, pointing out that Title VII is not a “general civility code.”

Retaliation claim fails too. To support his retaliation claim, the employee alleged that he complained to the supervisor about his expectation that the employee would continue facilitating the infidelity. However, he made no reference to discrimination, retaliation, or any Title VII protected activity when speaking with the supervisor. Nor did his complaint suggest that the supervisor’s actions were based on the employee’s gender. As such, he didn’t engage in protected activity as required to support a retaliation claim.

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