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.
Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises such as Covenants Not to Compete: A State-by-State Survey, and The Developing Labor Law, with a fully integrated, innovative legal research platform. Click here to request a free trial.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)