Seyfarth Synopsis: In Roberts v. Glenn Indus. Grp., Inc., No. 3:17-CV-745-GCM, 2019 WL 356809, at *2 (W.D.N.C. Jan. 29, 2019), aff’d in part, vacated in part, remanded, No. 19-1215, 2021 WL 2021812 (4th Cir. May 21, 2021), the plaintiff employee filed a lawsuit against his former employer alleging same-sex sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). The district court granted the defendant employer’s motion for summary judgment, holding that the plaintiff: (1) failed to present evidence of one of the scenarios described in the Supreme Court’s Oncale opinion to satisfy the “based on sex” prong of a sexual harassment claim based on a hostile work environment; and (2) failed to satisfy the causal relationship prong for a retaliation claim. The Fourth Circuit affirmed the district court’s ruling as to the retaliation claim, vacated summary judgment as to the same-sex sexual harassment claim, and remanded for further proceedings.
The Fourth Circuit’s ruling clarified that: (1) same-sex sexual harassment claims can be satisfied based on situations outside of those identified in Oncale; and (2) constructive knowledge of a plaintiff’s protected activity is insufficient to satisfy the causal relationship prong of a retaliation claim.
Defendant is a Charlotte-based company providing underwater inspection and repair services to utility companies. The plaintiff started working for the defendant in July 2015 as a “diver tender” or diver’s assistant. Upon his hire, the plaintiff was provided a copy of the employee handbook that included a “No Harassment” policy, which required all complaints of sexual harassment be reported to the company’s CEO. From the start of his employment, the plaintiff alleged that his supervisor repeatedly called him “gay”; made sexually explicit and derogatory remarks towards him; and physically assaulted him at least twice, including slapping him, knocking off his safety glasses, pushing him, and putting him in a chokehold. The plaintiff complained to two other supervisors and the company’s Vice President and Human Resources Manager, but the plaintiff’s supervisor was not disciplined or counseled. The plaintiff never complained to the company’s CEO, and the CEO did not become aware of the harassment until after the plaintiff was terminated. After two workplace safety incidents in March and April of 2016, the CEO terminated the plaintiff in April of 2016, citing the safety incidents as the company’s grounds for termination.
In February 2018, the plaintiff filed a lawsuit alleging, among other claims, violations of Title VII for sexual harassment and retaliation for the plaintiff’s complaints of sexual harassment. The district court granted summary judgment for the employer. The Fourth Circuit affirmed the district court’s summary judgment as to the plaintiff’s retaliation claim, but vacated summary judgment as to his sexual harassment claim and remanded the case for further proceedings.
Same-Sex Harassment Based on Gender
To establish a prima facie case of sexual harassment based on a hostile work environment, a plaintiff must prove: (1) unwelcome conduct; (2) based on the plaintiff’s sex; (3) sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and create an abusive work environment; and (4) that is imputable to the employer. The district court, citing to the U.S. Supreme Court’s decision in Oncale v. Sundowner Offshore Service, 523 U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998), explained that to succeed on a claim of same-sex sexual harassment based on gender, a plaintiff must show: (1) credible evidence that the alleged harasser is homosexual and made “explicit or implicit proposals of sexual activity”; (2) that the harasser was motivated by general hostility to the presence of members of the same sex in the workplace; or (3) “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” In Roberts, the district court found that none of the three Oncale situations applied to satisfy the “based on sex” prong of the prima facie case of sexual harassment based on a hostile work environment, and granted summary judgment for the employer.
The plaintiff appealed, arguing that the district court misapplied the Supreme Court’s ruling in Oncale, and the Fourth Circuit agreed. The Fourth Circuit rejected the district court’s narrow interpretation of the Oncale decision and clarified that the three evidentiary routes identified in Oncale were not intended to serve as an exhaustive list of the ways to prove that same-sex harassment was based on sex. Rather, the Oncale situations were intended to serve as examples of the various ways that a plaintiff may prove a same-sex sexual harassment claim. Citing to the recent Supreme Court decision in Bostock v. Clayton County, ––– U.S. ––––, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020), the Fourth Circuit acknowledged that the evidentiary routes by which a plaintiff could prove he or she is the victim of same-sex harassment would also include instances where the harassment was motivated by the fact that the plaintiff was perceived as not conforming to traditional male stereotypes. The Fourth Circuit also directed the district court to examine on remand whether physical assaults, even those not overtly sexual, may support a claim of a hostile environment based on sex, which further clarifies the evidentiary routes available to plaintiffs bringing such claims.
Knowledge Requirement to Prove Retaliation
The district court granted the defendant’s motion for summary judgment on the plaintiff’s retaliation claim, holding that a plaintiff must show that the decisionmaker was aware of the protected activity at the time the alleged retaliation occurred in order to satisfy the causation prong. The district court explained that the plaintiff could not establish the causation prong because the company’s CEO, who was the sole decisionmaker, fired the plaintiff without actual knowledge of the harassment or the plaintiff’s complaints of harassment to company employees.
On appeal, the plaintiff argued that constructive knowledge of protected activity based on complaints made to supervisory employees is enough to support a causal link between that activity and a decisionmaker’s adverse employment action. The Fourth Circuit, however, rejected the plaintiff’s attempt to expand the knowledge requirement to include constructive knowledge, explaining that the Fourth Circuit has consistently required proof of the decisionmaker’s knowledge of protected activity to support a Title VII retaliation claim. While the Fourth Circuit acknowledged the fact that the plaintiff notified several supervisory employees of the harassment, the Fourth Circuit ultimately held that such knowledge could not be imputed to the decisionmaker to establish a causal relationship between the protected activity and the decisionmaker’s termination decision.
Implications For Employers
For employers facing Title VII same-sex sexual harassment claims, this ruling clarifies that the Oncale situations are not the only evidentiary routes available to plaintiffs and that employers should be aware of other statements or actions in the workplace that could support a claim of a hostile environment based on sex.
For employers facing Title VII retaliation claims, the Fourth Circuit decision provides reassurance that the knowledge of other employees cannot be imputed to the decisionmaker and that actual knowledge of the decisionmaker remains the standard for establishing a causal relationship between a plaintiff’s protected activity and an adverse employment action. Employers, nevertheless, could still face liability for failing to address complaints of harassment in the workplace and should ensure they are taking steps to prevent workplace harassment.