EEO ROUNDUP: ARE ‘WILD SEX’ COMMENTS ENOUGH TO PROVE HARASSMENT?

 

Are two text messages referencing “wild sex” sent by one worker to another enough to support a sexual harassment claim?  According to a federal appeals court in Ohio, no. 

In a 2-1 vote, the U.S. Court of Appeals for the Sixth Circuit voted Sept. 13 to reject registered nurse Karen Graves’ claims against a Dayton, Ohio, gastroenterology practice and lead nurse David Schum, which were based primarily on two texts Schum sent to Graves. 

In the first text, Schum said he was happy for Graves, who was on vacation, and that she should “just have fun and wild sex”; the second text alluded to Graves and her husband having “wild sex” and said Schum thinks about sex all the time but was “just not getting it.” 

Graves complained to their supervisor and Schum was reprimanded, but he harassed her further by treating her rudely, addressing her curtly, and throwing a medical chart at her, she said. As lead nurse, he also sometimes denied her lunch breaks and gave her the most difficult work assignments, according to Graves. 

Schum’s texts, although sexual in nature, didn’t add up to sexual harassment, the Sixth Circuit majority ruled, because they didn’t exhibit an “anti-female animus” or seek sexual relations with Graves. 

The later, nonsexual actions Schum took toward Graves couldn’t be said to have contributed to a sex-based hostile work environment because Schum’s behavior stemmed from his anger at Graves for reporting his text messages, not from Graves’ status as a woman, the majority found. 

Even if Schum’s conduct could be said to have targeted Graves’ gender, the majority added, it still wasn’t severe or pervasive enough to support a finding of sexual harassment under Title VII of the 1964 Civil Rights Act or Ohio law.  The text messages were “isolated incidents,” and Schum’s other conduct was nonsexual in nature and thus didn’t give rise to the type of hostile work environment prohibited by Title VII, according to the majority. 

The majority did note that Schum’s post-complaint “behavior might have formed the basis of a successful retaliation claim,” but that Graves didn’t plead such a claim.

Judge Martha Craig Daughtrey wrote the majority opinion, which was joined by Judge Richard A. Griffin. 

Dissent: Texts Must Be Viewed in ‘Social Context.’

Judge Karen Nelson Moore dissented. She said Schum’s text messages needed to be viewed in the context in which they were sent: an exchange between “friendly,” but “not close” colleagues who never previously shared intimate details of their lives with each other. 

Moreover, because Schum’s texts were “overtly sexual,” they didn’t need to be motivated by an “anti-female animus” to violate Title VII, Moore said. 

She said “a reasonable jury could find that Schum was trying to engage Graves in a conversation about sex, that Schum was doing this because he wanted to pursue a relationship with Graves, and that his behavior was therefore ‘based on sex.’ "  

That the texts might be viewed as unprofessional and inappropriate by women and men alike didn’t mean they were “gender-neutral,” Moore added. “Social context is key,” she wrote, and comments that are inappropriate or unprofessional when made by a man to another man “may cross the line into harassing behavior when said to a woman.”  

The case—Graves v. Dayton Gastroenterology, Inc.—is interesting because it highlights the opposing conclusions about the occurrence of sexual harassment that different courts and judges can reach based on the same factual scenario or similar sets of facts.  

That lack of consistency is likely one of the reasons employers, employees and enforcement authorities—as documented in an Equal Employment Opportunity Commission task force’s June report on workplace harassment—have found it so difficult to root sexual harassment out of the U.S. workplace despite decades of training and other measures devoted to that purpose.

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