Lately, the EEOC has been actively pursuing more sex discrimination and sexual harassment claims—and seeking ways to expand who can make those claims. That effort ran into a roadblock recently when it lost a big case before the 3rd Circuit Court of Appeals.
The EEOC intervened in a case where an employee had lost her lawsuit before a jury, but appealed without an attorney’s assistance.
Recent case: Ellen worked as a nurse at Temple University’s medical center. Most of her co-workers were other female medical professionals.
Ellen was terminated after allegedly making a mistake involving administration of medication.
She had previously filed numerous complaints with HR and then with the EEOC in which she claimed to have been the victim of sexual harassment. She alleged not only that she had been forced to work in a sexually hostile environment, but that she also was retaliated against for her complaints, suggesting that the medication error was a trumped up charge.
The trial court dismissed her sexual harassment claim despite evidence that fellow nurses regularly engaged in behavior like joking with each other by licking, groping, making lewd gestures, pretending to grope each other’s breasts and genitals and making sexually offensive comments. The evidence showed this occurred on a nearly daily basis.
Ellen found on Facebook a series of sexually offensive photographs portraying the nurses—apparently in their work area and in uniform—touching each other’s breasts and genitals.
Temple argued that while the conduct might have been lewd and inappropriate for a workplace, it wasn’t directed at Ellen on account of her sex.
The trial court agreed and dismissed her harassment claim. It did, however, allow the retaliation claim to go to trial. But the jury, apparently believing that Temple had a legitimate reason for firing Ellen based on a medication error, said there had been no retaliation.
Ellen appealed, but by then her attorneys had dropped out.
In stepped the EEOC, arguing that the court had been wrong when it dismissed the sexual harassment case based on the behavior not being directed at Ellen because of her gender. Essentially, the EEOC argued that anyone offended by sexually explicit behavior can sue under Title VII for sexual harassment.
The 3rd Circuit Court of Appeals disagreed and refused to reinstate the sexual harassment claim. (Betz v. Temple Health Systems, No. 16-1423, 3rd Cir., 2016)
Final note: This case turned on the concept of same-sex sexual harassment. The U.S. Supreme Court has stated that same-sex harassment claims can be brought under Title VII, but only on three grounds:
1. First, a worker could show that the harasser was gay or lesbian.
2. Second, she could show that she had been harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.
3. Third, she could offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. That is, if Ellen had shown male nurses were not subjected to the vulgar display of behavior but Ellen (or other women) were. That just wasn’t the case.
