Like most employers, colleges and universities prefer to respond to harassment and discrimination complaints that are made internally before the filing of a public lawsuit. This strategy, however, is only effective when the employer responds appropriately to those complaints. A recent federal decision illustrates the importance of responding to such complaints regardless of whether they involve “traditional,” male vs. female harassment or other kinds of non-traditional harassment, where supervisors may presume improperly that internal complaints lack merit.
In Scarbrough v. Board of Trustees of Florida A&M University, the 11th Circuit reversed the summary dismissal of Title VII retaliation claims filed against the university by Dushun Scarbrough, who claimed that he was improperly terminated for reporting his female supervisor's inappropriate sexual advances toward him. Scarbrough began working for Florida A&M’s School of Nursing as an Academic Advisor for Student Affairs in August 2004. Scarbrough’s direct supervisor, Kimberly Davis, recruited him for the position.
Shortly after Scarbrough was hired, Davis allegedly subjected him to a series of unwanted sexual advances, all of which Scarbrough rejected. In one such incident, Davis claims that she ordered Scarbrough to appear at her home for a “mandatory meeting,” during which she made inappropriate sexual advances toward him. After Scarbrough rejected those advances, Davis overloaded him with job duties and verbally abused him in the workplace.
Following that incident, Scarbrough met with Carrie Gavin, one of the university’s Equal Opportunity Program officers, and Cornelia Porter, the Dean of the School of Nursing, to report Davis’ behavior. Though he met with Gavin and Porter eight to ten times each, the harassment continued despite assurances from both that they had spoken to Davis and instructed her to correct her behavior.
On December 13, 2004, Scarbrough interviewed with Dean Porter for a Student Coordinator position in the School of Nursing. The dean recommended that he be hired for the position before she left for vacation. Six days later, Davis physically assaulted Scarbrough in his office and verbally abused him. When Scarbrough reported this incident to the University Provost’s office, he was granted permission to take the rest of the year off to be separated from Davis. Upon his return, he met with Gavin and Porter about the incident and announced his intention to file a formal complaint against Davis. He did so on January 5 and was placed under Dean Porter’s direct supervision.
Shortly after filing the complaint, one of the tires on Scarbrough’s car was slashed, and a neighbor reported seeing Davis’ car at the time of the incident. Davis also confronted Scarbrough in the office, again verbally abusing him and threatening him with violence. Fearing for his personal safety, Scarbrough called the campus police to report the harassment and sought an injunction against Davis, which was granted by the county court that same day. Notably, Scarbrough told the campus police that, “if he were a ‘woman,’ the university would have addressed the problem ‘a long time ago when [the] harassment first began.’” When Scarbrough presented the injunction papers to Dean Porter, she immediately withdrew her recommendation that he be hired as a Student Coordinator and fired him the next day for “unprofessionalism,” because involving the campus police in the dispute was “unnecessarily disruptive.”
Though the district court held that the university had presented adequate grounds for Scarbrough’s termination, the 11th Circuit disagreed. Cautioning that involving the police in an employment dispute does not always constitute protected conduct, the circuit court held that where police intervention is sought to “protect against actions that are intertwined and interrelated with alleged sexual harassment, it cannot be deemed the ‘unprofessional’ conduct for which the employee was terminated.” That statement is consistent with precedent in other jurisdictions, where courts have held that filing a police report constitutes protected activity under Title VII as long as the report actually contains a reference to discrimination or harassment.
Accepting the university’s rationale, the court reasoned, would be tantamount to requiring employees to waive their right to police protection simply because it might be disruptive to the workplace and could, for example, permit the termination of an employee who reported a rape to the police. Declaring that conduct consisting “solely of complaints of sexual harassment” that was “at all times found to be inextricably intertwined with [an] attempt to protect [oneself] from harassment . . . cannot constitute a legitimate, non-discriminatory basis for termination,” the 11th Circuit reversed summary judgment and remanded the case to the district court.
Perhaps the most telling aspect of this opinion is the plaintiff’s statement that, “if he were a ‘woman,’ the university would have addressed the problem ‘a long time ago when [the] harassment first began.’” Though female-on-male harassment is uncommon, the U.S. Supreme Court has recognized that Title VII applies equally to men and women. The courts have repeatedly recognized that congress intended to protect all individuals from unlawful discrimination in employment. Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745, 749-50 (4th Cir. 1996) (“While Congress’ particular focus in amending Title VII to prohibit discrimination on the basis of ‘sex’ was to ensure equal employment rights for women, the Supreme Court has interpreted the Act’s broad language to protect both men and women.”). Accordingly, as Scarbrough illustrates, it is a mistake for employers to view female-on-male harassment claims with any less seriousness than more “traditional” types of claims, a viewpoint that reflects the very gender bias that Title VII is designed to discourage.
It may well have been a tendency to devalue male claims of harassment by a female that led the university to fire Scarbrough for his “unprofessional” decision to seek protection from the campus police. Scarbrough should serve as a reminder to all employers that every harassment complaint, even those that may not fit traditional molds, should be taken seriously.