Employment Law Daily Context of alleged conduct supports finding harassment was sex-based
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Tuesday, May 24, 2016

Context of alleged conduct supports finding harassment was sex-based

By Kathleen Kapusta, J.D. Explaining that “Title VII requires no magic words to convert a verbal exchange into the stuff of sexual harassment,” the First Circuit found that while a supervisor’s innocuous comment that he employed two Thai au pairs, without more, was unlikely to qualify as sexual harassment, when viewed in the context of a Chinese employee’s allegations that he also discussed the purported obedience of Asian women and whether the au pair’s swimwear choices were sufficiently revealing, his statements took on a sexually suggestive note. The pro se employee also raised a triable issue on whether she was terminated in retaliation for her sexual harassment complaints, said the court, vacating the grant of summary judgment against her Title VII claims (Tang v. Citizens Bank, N.A. aka Citizens, N.A., May 19, 2016, Torruella, J.). While working for the bank, the employee applied for a position in the technology group and was interviewed by her soon-to-be supervisor at a “popular dating spot” where he purportedly mentioned his live-in au pairs and their swimwear choices, stated his belief that Asian women were obedient, and asked if she was married. She accepted a job offer and began working in that department. Although the supervisor worked from home, he visited the office weekly. “Assume.” The employee claimed that when she met with him two months later, he again brought up the au pairs and the obedience of Asian women, and he mentioned that he had great control over her, her immigration status, and her future career. He also purportedly wrote the word “assume” on a piece of paper, said it could be broken into “ass,” “u,” and “me,” gestured to her “private area,” and made obscene coupling motions with his hands while suggesting they combine their “asses.” Because she failed to respond to his advances, she claimed he gave her a negative performance review, placed her on a performance improvement plan, and threatened her when she refused to reveal her boyfriend. She was terminated four months after she complained to HR about his conduct. She sued, asserting claims of sexual harassment and retaliation. The district court, finding that his conduct did not amount to sexual harassment, granted summary judgment against that claim but did not address the retaliation claim. Context matters. On appeal, the bank argued she could not show the alleged harassment was based on sex, as the comments lacked any sexual content and he never propositioned or touched her. Pointing out, however, that context is important, the court found that his comments about the au pairs, when viewed in the context of the employee’s other allegations, took on a sexually suggestive tone. Similarly, while the word “ass” does not necessarily amount to sexual harassment, here, the employee alleged that he approached her, gestured at her "private area," and made obscene gestures with his hands. She also claimed that his behavior in their later interactions, like yelling at her, stemmed from her having rebuffed his advances. Thus, viewing the circumstances as a whole, the evidence raised a reasonable inference that he engaged in sex-based discrimination. Severe/pervasive. As to whether the harassment was sufficiently severe or pervasive, the court noted that in addition to the initial interview, the negative performance review, the veiled threats as to her immigration status, and the meeting where he yelled at her and forced her to reveal her boyfriend, she alleged he made inappropriate comments to her “every time he had a chance.” She also claimed that he knew about her boyfriend long before he claimed the boyfriend’s job with a client company created a conflict of interest, that he acted outraged and was physically threatening during the supposed “conflict-of-interest” meeting, and that he had in the prior months pried into her personal relationships and made reference to her immigration status. This was enough to defeat summary judgment on the hostile work environment claim. Retaliation. After finding that the district court’s failure to address the merits of her retaliation claim did not prevent it from doing so, the appeals court observed that four months after she complained to HR, she was fired. Further, the court pointed to an email chain between the employee and various supervisors that was later forwarded to HR as evidence that the bank had a nondiscriminatory reason for firing her. While the emails showed she had performance issues long before she complained to HR, the court found the circumstances surrounding them suggested pretext. For instance, while many of the events described in the emails took place long before her complaint, they were forwarded to HR shortly after her complaint. While the most logical inference was that HR compiled the emails to investigate whether there was any basis for her claim that her PIP was false, another inference was available: that, upon receiving her complaint, the bank realized she posed a problem and was beginning to collect information for her termination. “While this inference may be less plausible,” said the court, “it is not for this court on summary judgment to decide between competing inferences.” And while the bank claimed the employee was fired because she made a “material mistake” in violation of her final written warning, its failure to explain what the material mistake was reinforced the impression that its reasons for terminating her were pretextual. In addition, the employee presented evidence of praise she received in her previous job. Noting that an occasional good review does not discount a consistent record of poor performance, the court found that the fact she received positive reviews up until she began working with her alleged harasser raised the reasonable inference that her negative reviews and termination were related to his behavior.

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