Labor & Employment Law Daily ‘Sexual rumor-mongering and propositioning’ of female painter support hostile environment claim
Monday, October 1, 2018

‘Sexual rumor-mongering and propositioning’ of female painter support hostile environment claim

By Brandi O. Brown, J.D.

A painting company employee, who was subjected to “sexual rumor-mongering and propositioning,” including rumors that she would engage in sex for $100, will proceed with her hostile work environment claim against her employer, a federal district court in Maryland ruled. There was evidence the offending conduct was both severe and pervasive, including that a supervisor asked her to trade sex for a paid day off. There were also triable issues on the Faragher/Ellerth defense, including those concerning the fact that the sexual harassment policy was written only in English and the supervisor and others could not read English. The defendant’s motion for summary judgment was granted in part and its motion to strike was denied (Tinoco v. Thesis Painting, Inc., September 24, 2018, Hazel, G.).

Widespread rumors of sex-for-pay. During her one year of employment with Thesis Painting, the plaintiff, who had been promised to be trained as a painter, was instead kept as a cleaner/assistant and allegedly subjected to widespread rumors of sexual promiscuity and propositioning for sexual favors. One of the most prevalent rumors was that she would perform sexual favors for a $100 fee. The originator of that rumor falsely claimed to have had sex with the employee for that amount of money and claimed to have done so in the presence of her child. The rumor was so pervasive that a cargo elevator operator told the employee about it and a new employee who had never worked with her before asked about “the girl who charges $100.”

In early 2015, one of the company’s foremen, based on those rumors, sent the employee text messages propositioning her for sex. He pressured her not to go to work that day and to allow him to pay her for sex. Because he was a foreman, he was responsible for keeping record of employees who showed up for work and thus he had the power to report that she had worked if she took him up on his “offer” not to. She told him that he scared her and eventually stopped responding to his texts.

Reported being propositioned by foreman. After this exchange, the employee reported the propositioning and the other rumors to the president/co-owner, who said she would investigate. However, this was not the first time upper level management had heard of the issue. For example, a rumor went around earlier in her employment that the employee “was having sexual relations” with another supervisor. One of the co-owners heard about it through an anonymous source, but there was no evidence that she took steps to stop that rumor or similar ones. Still, after the employee reported being propositioned, the co-owners met with the foreman, advised him to stop communicating with the employee, and held a sexual harassment training session.

She was later scheduled to work with the same foreman in spite of promises that she would not be assigned to work with him, so the employee resigned. She filed suit. The employer filed a motion for summary judgment, although it never deposed the employee during discovery or even after it filed the motion. That failure on the employer’s part was one of the primary reason for denial of its motion to strike the employee’s affidavit.

Singled out for rumors and propositions. The court denied summary judgment in part, keeping the hostile work environment claim alive. The employee presented sufficient evidence to dispute the employer’s contention that the offensive conduct was welcome—she complained to several levels of management, told the foreman that he scared her, and several of the comments were unwelcome “on their face.”

The employee also presented facts disputing the employer’s contention that the conduct was not gender-based. She worked in a predominately male environment and her colleagues had noted that she was “pretty and feminine” and that she dressed differently than her male colleagues. She presented evidence that her complaints of not being trained as a painter were dismissed because one of the co-owners believed she would want to avoid physical labor and dirtiness. Finally, the court explained, the offending comments were sexual in nature. She presented evidence that she was “singled out for sexual rumor-mongering and propositioning because of her status as a woman.”

Severe or pervasive. There was also sufficient evidence that the conduct was severe or pervasive—in fact, there was evidence of both. The employee presented evidence that she was asked to exchange sex for a material benefit, i.e., that a supervisor pressured her to trade sex for paid time off. Being pressured in such a manner, the court explained, is not just an offensive utterance, it is both “humiliating and demeaning.” And there was evidence that it interfered with her work performance—when she learned she was being assigned to work with that supervisor, she resigned. The rumors were also sufficiently pervasive to meet the requirements of establishing a hostile work environment.

Employer liability. Finally, there were issues of fact regarding employer liability. There was evidence that the foreman was her supervisor and that he could take tangible action. There was also evidence that the employer failed to take action on the rumors before the foreman propositioned her. This same evidence also factored in to the court’s determination that material fact questions existed with regards to the Faragher/Ellerth affirmative defense. Additionally, there was evidence that the employer’s policy regarding sexual harassment was ineffective—it was written in English only and there was evidence that the foreman did not even know what it said. There was also the question of the employer’s inaction before the foreman propositioned the employee.

With regards to the remainder of the summary judgment motion, it was granted. In the Fourth Circuit, the court explained, constructive discharge claims require evidence not presented by the employee, i.e., that the employer intended to drive the employee from the job. The motion was also granted with regards to the retaliation claim presented.

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