Why it matters

Context is everything, the First Circuit Court of Appeals informed an employer, reversing summary judgment in favor of a bank, based on arguably innocuous comments that a former employee alleged constituted sexual harassment. Xiaoyan Tang interviewed for a new position at a "popular dating spot" by the job's supervisor, who reportedly mentioned he employed two Thai au pairs, referenced their swimwear choices, stated his belief that Asian women were obedient, and asked if she was married. Tang accepted the job offer but later sued for sexual harassment after being terminated. A federal court judge granted summary judgment in favor of the employer but the federal appellate panel reversed. "Title VII requires no magic words to convert a verbal exchange into the stuff of sexual harassment," the court wrote, and the supervisor's alleged comments about the au pairs, when viewed in the context of the plaintiff's other assertions, took on a sexually suggestive tone. Viewing the circumstances as a whole, the panel found Tang raised a reasonable inference that she suffered from sex-based discrimination and also raised a triable issue of fact as to whether she was terminated in retaliation for her complaints about sexual harassment.

Detailed discussion

Xiaoyan Tang began working in the Commercial Real Estate Group of Citizens Bank in October 2007. She applied to transfer to the Technology Banking Group and interviewed with David Nackley in early 2010.

The interview took place at what Tang characterized as a "popular dating spot," and she recalled that the focus was on personal matters. Nackley allegedly expressed his views that Asian women are obedient, referenced two live-in au pairs he hired from Thailand, stated the au pairs did not wear sufficiently revealing swimsuits, offered to teach Tang how to golf, and asked if she was married.

Tang began working for the group in May 2010 and had a meeting with Nackley in July. She claimed that they did not discuss her work but again focused on personal matters, with additional references to the au pairs, swimsuits, and Tang's dating habits. She also alleged that Nackley wrote the word "assume" on a piece of paper and stated it could be broken into "ass," "u," and "me," suggesting the two "combine" their asses, with obscene coupling motions.

When Nackley realized she was not responding to his advances, Tang said his attitude changed and she began receiving negative performance reviews and a performance improvement plan (PIP) in early 2011. Tang objected to the plan and filed a complaint with human resources.

She was later terminated for failing to demonstrate improvement after receiving her PIP and filed suit against Citizens and Nackley. Her pro se complaint was dismissed by a district court judge and she appealed.

The defendants argued that Tang failed to show that the alleged harassment was based on sex, as she asserted no evidence of sexual comments or behavior and Nackley never directly propositioned her or touched her. "Title VII, however, does not require evidence of overtly sexual conduct for a sexual harassment claim," the First Circuit Court of Appeals wrote. "Title VII requires no magic words to convert a verbal exchange into the stuff of sexual harassment. The context in which something is said may be just as important as what is said."

An innocuous comment that Nackley hired two Thai au pairs, without more, is unlikely to qualify as sexual harassment, the court agreed. But "[w]hen viewed in the context of Tang's allegations that Nackley also discussed the purported obedience of Asian women and whether the au pairs' swimwear choices were sufficiently revealing, however, Nackley's statements take on a sexually suggestive tone," the court said.

While many of the exchanges did not involve sexual conduct (such as Nackley yelling at Tang in a meeting), the plaintiff claimed that Nackley's behavior stemmed from her having rebuffed his advances. "Viewing the circumstances as a whole, then, this court determines that the evidence was sufficient to raise a reasonable inference that Nackley engaged in sex-based discrimination," the court wrote.

The court similarly found that the plaintiff alleged harassment that was severe or pervasive, despite the limited number of incidents, based on the "cumulative evidence." The defendants' many arguments against "are oblique criticisms of Tang's credibility and veracity," which are for the jury's consideration, the court added.

Tang's retaliation claim was also revived by the First Circuit, which found that her allegations "clearly set out a prima facie case for retaliation" despite the fact her amended complaint did not include a retaliation claim among its numbered causes of action. Tang undertook protected conduct by submitting her complaint to human resources and her termination occurred just four months later. In addition, several emails about Tang's allegedly poor performance were forwarded to human resources immediately after she made her complaint and the employer "declined to clarify the precise circumstances of Tang's termination," the court said.

"Because the record raises a triable issue as to whether Tang suffered sexual harassment and retaliation, the judgment is vacated and the case remanded for further proceedings consistent with this opinion," the panel concluded.

To read the opinion in Tang v. Citizens Bank, click here.