By Robert Margolis, J.D.
Having high-ranking women in executive roles is not a defense to a hostile work environment claim based on respondeat superior.
A Hotwire Communications internal newsletter supporting Bill O’Reilly after his termination for allegedly sexually harassing several women, along with a shrine to O’Reilly in the office of a Hotwire Executive Vice President helped create a hostile work environment, a female assistant general counsel at Hotwire alleged as part of her Title VII complaint. A federal district court, citing those allegations, has denied the employer’s motion to dismiss the hostile work environment claim, as well as claims for discrimination and retaliation under Title VII, the ADEA, and Pennsylvania state law (Murphy v. Hotwire Communications, LLC, May 5, 2020, Baylson, M.).
Alleged discrimination, harassment. The assistant general counsel alleged that she was the victim of harassment and discrimination, and that when she complained, the employer terminated her. She alleged that the general counsel (a male) systematically favored male employees, as exemplified by her being excluded from a dinner and lunch that he had planned with male members of the department, and that she generally was excluded from updates about cancelled meetings and calls.
Shrine. In April 2017, the employer distributed an internal newsletter, which included an article mourning Fox News’ termination of Bill O’Reilly in the wake of sexual harassment allegations against him. The article noted that many of the employer’s executives and management were saddened by O’Reilly’s firing. A shrine to O’Reilly was set up in the office of an executive vice president, which along with the comments in the newsletter, the employee understood to be discriminatory against females. Several other female employees complained to her that the O’Reilly newsletter was discriminatory.
A few months later, the employee learned that although she was the employer’s oldest and most experienced assistant general counsel, she was paid less than the other assistant general counsels. She filed an EEOC charge of discrimination and harassment; after notifying the employer’s president, the president became dismissive and refused to acknowledge her.
Throughout 2017, when the company replaced legal department colleagues, it hired attorneys significantly younger than the employee. After the last of these hires, the employer terminated her, while keeping the younger, newer hires. She was 62 years old when her job was terminated.
She sued for harassment, discrimination, and retaliation under both Title VII and the ADEA, as well as under Pennsylvania state law.
Hostile work environment. The employer sought dismissal of the hostile work environment claim, contending that the employee failed to allege acts sufficient to establish the requisite “pervasive” or “severe” hostility to support her claim. And while the court agreed that standing alone, exclusion from some work events or social gatherings might not suffice (because in this case they occurred outside the applicable statute of limitations), those exclusions provided context for considering all of the allegations. In that regard, the court highlighted the newsletter mourning the termination of Bill O’Reilly, and how a shrine devoted to such a prominent figure accused of sexually harassing multiple woman could be deemed to create a hostile environment. Looking at the “totality of the circumstances,” the employee’s allegations passed muster, the court held.
Respondeat superior. The employer also sought dismissal of the hostile work environment claim for failure to allege respondeat superiorliability. The employer argued that the employee only reported one alleged harassment incident, and the employer has women in leadership positions. The governing standard in the Third Circuit for respondeat superior liability is whether the employer “knew or should have known” of the harassment and then failed to take “prompt remedial action.” The court held that the employee pleaded sufficient facts to impose respondeat superiorliability and survive the motion.
In particular, the employee alleged that she complained about the O’Reilly newsletter to one general counsel, who did not address that complaint. Meanwhile, another general counsel exhibited bias and favoritism toward male employees. Because that favoritism occurred within the scope of employment it did not need to be reported, the court noted. The court rejected the employer’s request to consider the position statement it filed with the EEOC to respond to the employee’s EEOC charge, because that position statement was not alleged in, or incorporated into, the employee’s federal court complaint.
The court similarly rejected the employer’s argument that having women in executive roles was a defense to the claim. It quoted the Supreme Court’s admonition in Onacle v. Sundowner Offshore Servs., Inc., that nothing in Title VII precludes a discrimination claim merely because an employer (or someone acting for the employer) is in the same protected class as the plaintiff.
Age discrimination. The employee based her age discrimination claims on her contentions that (1) she was paid less than younger colleagues, and (2) she was terminated because of her age. For the pay disparity claim, she alleged that despite being more qualified and experienced than her younger colleagues, she was paid less than them. The court held that those allegations sufficed.
For the claim based on her termination, the employee did not allege that she was directly replaced by a younger worker, but that discriminatory animus can be inferred because the employer repeatedly replaced colleagues who left the legal department with attorneys who were significantly younger than her, and when she was dismissed, the younger attorneys kept their jobs even though she was more qualified and experienced. The court found those allegations to sufficiently allege that the employer favored younger workers over older ones in its hiring decisions.
Retaliation. The employer contended that the employee failed to plead a causal connection between her reporting the O’Reilly newsletter, filing the EEOC charge, and her dismissal. But as the court pointed out, absent a close temporal proximity of the reporting and termination, she could still plead causation by showing intervening acts exhibiting antagonism. The employee alleged just that, the court held, when she described in the complaint how after filing the EEOC charge and reporting the newsletter, the employer’s president became dismissive of her, ignored her, and refused to greet or look at her.
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