Fourth Circuit Highlights that Title VII Does Not Require General Civility Between Workers

Employment Law

Fourth Circuit Highlights that Title VII Does Not Require General Civility Between Workers

Jul 18, 2022 | Employment Law

It is a bedrock principle of U.S. law that employment discrimination on the basis of sex is prohibited under Title VII of the Civil Rights Act of 1964. And, of course, hostile work environment sexual harassment is a subset of employment discrimination that involves unwelcome conduct because of sex that is sufficiently severe or pervasive to create a work environment that a reasonable person would consider intimidating, hostile or abusive. There is scant disagreement that sexual harassment can have a direct and detrimental impact on workforce morale, productivity, absenteeism, and turnover, and can result in emotional distress and psychological harm to employees who experience such harassment.  

With Title VII’s workplace protections so firmly established, it is easy to understand why some employers simply look past important limits on the kinds of inappropriate behavior prohibited by Title VII when faced with an employee complaining about being “harassed” by a coworker. When investigating and evaluating such claims, however, employers should keep in mind that Title VII does not function as a “general civility code” for the workplace, and was never intended by Congress to cover all hostile behavior and boorishness between employees, even in some circumstances when the bad behavior may be related to the sex of the employee on the receiving end of it. 

The limits of Title VII protections were highlighted in two recent court decisions, with the U.S. Fourth Circuit Court of Appeals concluding in Sowash v. Marshalls of MA, Inc., that inappropriate behavior and a basic lack of good manners – even if it is based on sex and offensive to the employee affected by it – is not always sufficiently severe or pervasive to create an actionable hostile working environment, and in Webster v. Chesterfield Cnty. Sch. Bd., that Title VII does not protect employees against harassing behavior that, although appearing to have been sex-based, was perpetrated for reasons other than the victim’s sex. Both decisions are instructive on the limits of Title VII and are summarized below.

Unprofessional, Inappropriate, and Distressing Harassment is Not Always Actionable

Front and center in the Sowash case was the “high bar,” as the Court described it, separating rude and unprofessional treatment by a coworker that does not violate Title VII, from sex-based conduct “aimed to humiliate, ridicule, or intimidate” creating the kind of abusive atmosphere that Title VII prohibits. Summer Sowash, a sales floor supervisor, sued Marshalls of MA, Inc., a Virginia department store, alleging that she had been sexually harassed by Hughes, a coworker, in violation of Title VII. The Fourth Circuit’s shorthand description of the harassment alleged by Sowash was that Hughes had hugged her and touched her arm during work on more than ten occasions over the course of several months; kissed her on the cheek on one occasion, when she had returned from a medical leave of absence; and complimented her appearance at least once, saying she looked pretty in yellow.   

While expressing no doubt that Hughes’ conduct toward Sowash had been unprofessional and inappropriate, and had caused her “genuine distress,” the Court concluded that it was neither severe nor pervasive enough to create the kind of objectively hostile or abusive workplace that Title VII is designed to remedy. Whether alleged harassment is deemed “severe or pervasive” turns on whether it is frequent (more than occasional, isolated, or sporadic), physically threatening or humiliating, or unreasonably interferes with the employee’s work performance. The Court discounted the severity of Hughes’ alleged hugs and touching of Sowash, noting that they had been “non-sexual,” insofar as they were not accompanied by any alleged sexual comments or propositions. From this, the Court concluded that the harassment alleged by Sowash was too little to create an actionable abusive work environment under Title VII. 

Harassment Not Motivated by a General Hostility Toward Women is Not Actionable

In Webster, the Fourth Circuit considered whether allegations of sexual harassment of Regina Webster, a Special Education Instructional Assistant at Providence Elementary School, had been perpetrated against her because of her sex, i.e., whether the harassment would “have occurred but for her sex.”  Webster sued her employer, the Chesterfield County School Board (“Board”), claiming to have been sexually harassed on an “almost daily basis[,]” by one of her male special needs students, who was described as having significantly delayed mental and emotional capacity by School Board experts. Webster further alleged that Providence Elementary School had failed to take appropriate steps to stop the student’s harassment by failing to act on her request to be transferred to her previous classroom assignment. School administrators asserted that a transfer was not feasible until staffing was reassessed at the end of the school year.

The harassment Webster alleged she had experienced was frequent and graphic, including allegations that the student had repeatedly put his hands up under her dress or skirt, had often touched her front private parts, and had grabbed her front private crotch area and her bottom over the outside of her clothes. School Board experts offered that the student could not distinguish between the male and female gender, did not have the capacity to harass anyone because of gender, or even understand that his behavior could be sexual. Webster countered that assertion by alleging that the student more often inappropriately touched female adults, like herself, than he touched males.

The Court was not persuaded that Webster had provided sufficient evidence to meet Title VII’s “but for sex” requirement, noting:

While the conduct need not be ‘motivated by sexual desire’ or sexual intent . . . it does need to have been conducted ‘in such sex-specific and derogatory terms . . . as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.’

The “critical question,” according to the Court, is “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”  Because the School Board’s evidence appeared to show that it was not at all unusual for all special education instructors, both male or female, to be touched inappropriately by special needs students, and that the student in this case in particular was unable to distinguish between males and females, the Fourth Circuit ultimately concluded that the student had not targeted Webster because of her sex, and Title VII did not cover her sexual harassment claim.

As the Sowash and Webster cases make clear, Title VII does condemn all rude or boorish behavior at work, and that there is nothing inherently unlawful under Title VII about being a “general purpose jackass” in the workplace. Title VII’s sex-based harassment protections come into play only if the workplace harassment is objectively “severe or pervasive” and the harasser was motivated by an intent to discriminate against the individual for reasons protected by Title VII.  In the case of sexual harassment, that reason must be linked to the victim’s sex.

What are the takeaways for Employers from Sowash and Webster?

The cases are important reminders for employers that not every instance of harassment claimed by an employee is actionable or will have an unfavorable outcome for the business. Nevertheless, employers should continue to have appropriate policies in place to deal with such conduct, including to (1) encourage employees to report sexual harassment to management before it becomes severe or pervasive, (2) designate one or more individuals to receive such complaints, (3) establish clear safeguards against retaliation when sexual harassment claims are reported, (4) conduct a prompt, thorough and impartial investigation of all allegations of harassment; and (5) take appropriate action to remediate acts of harassment.

If you have questions about your policies and practices to ensure compliance with this decision, please contact Doug Taylor, at rdougtaylor@beankinney.com or (703) 525-4000.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.

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