When your employees ask you to stop talking about sex, please, just stop.
Colie, et al. v. Carter Bank & Trust, Inc., Civil Action No. 3:09-cv-00086-nkm-bwc (W.D. Va. May 19, 2010). The Plaintiffs, three women named Colie, Collins, and Jeffries, filed a complaint alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 against the Defendant, Carter Bank & Trust, Inc. The Bank filed a motion to dismiss, arguing, in effect, that even if everything the Plaintiffs had alleged was true, they still failed to make out a valid claim. For the purposes of the motion to dismiss, the Court treated the allegations of the Complaint as if they were true.
The common theme among the three Plaintiffs’ allegations was that for several years the Bank’s branch manager, a woman named Deese, had subjected them to an unrelenting barrage of inappropriate comments and behavior. With respect to Jeffries, the Complaint alleges that Deese called her “baby,” told her she had “sexy legs” and “sexy hair,” and said that she wanted to “kiss and make up with her.” On several occasions, Deese embarrassed and humiliated Jeffries in front of other employees and customers of the bank. Jeffries complained to the Bank’s management and was told to call back if it happened again.
It happened again and Jeffries complained again about Deese’s inappropriate comments. The Bank took no action. After the second complaint, Deese and a male companion engaged in a make-out session at the entrance to the Bank, during business hours and in full view of the employees and customers. Jeffries complained to management again but management, again, did nothing. Following the third complaint, Deese asked Jeffries, in front of other employees, whether she used K-Y jelly. A little later, Deese asked Jeffries whether she had any sexually transmitted diseases and, despite Jeffries’ protests, told Jeffries and the other employees about her own history of sexually transmitted diseases, a subject to which Deese returned on several other occasions. A few days later, Deese physically pinned Jeffries to a door in the teller area and would not release her until she screamed for help from another teller.
Jeffries complained again and two of the Bank’s vice presidents called Deese in for a meeting. Following the meeting, Deese returned to the Bank and stared “menacingly” at Jeffries until the end of the work day. As a result of Jeffries’ complaint, one of the Bank’s vice presidents arranged for a group discussion among Deese and the employees she supervised. Deese made a non-specific apology to the employees and was told to confine herself to her office. The vice president expressly instructed the employees to make no further complaints about Deese’s behavior and to discuss the meeting with no one. After the meeting, Deese accused Jeffries of complaining to management and told Jeffries that she was “jealous” of Deese. Deese’s comments to Jeffries about “sexy hair” and “sexy legs” resumed almost immediately. Deese also began interviewing employees to find out who had complained about her. During this time, she repeatedly told employees that she “could get people fired.” She also suggested that her own employment was secure because one of the Bank’s vice presidents thought she was “pretty.”
After a few more months of this sort of conduct, Jeffries quit.
To establish a Title VII claim for sexual harassment in the workplace, a plaintiff must show that the offending conduct
- was unwelcome,
- was based on her sex,
- was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, and
- was imputable to her employer.
Intimidation, insult, and ridicule can create an abusive work environment that violates Title VII, but courts try to balance the law’s requirements with the reality that the workplace often features abusive language, gender-related jokes, and occasional teasing. In this case, the Court looked at the frequency of Deese’s comments and behavior, that the comments continued for several years, and that the comments and behavior continued even after several complaints and requests that Deese stop. The Court concluded that a reasonable jury could find that Deese’s acts constituted sexual harassment for which the Bank could be liable.
In a significant aside, the Court also concluded that Jeffries was “constructively discharged” from her job, even though she had quit. In order for an employee to be constructively discharged, the employee must prove that her working conditions were so intolerable that a reasonable person in her position would have felt compelled to quit. In this case, it was not so much Deese’s actions toward Jeffries that led the Court to this conclusion, it was the Bank’s refusal or inability to correct Deese that the Court found intolerable. When Jeffries complained to Defendant’s vice president and administrative vice president, she was instructed to keep any further complaints to herself. Deese, Jeffries’s supervisor, was then told of the complaints, Deese proceeded to initiate an investigation into the supposedly confidential complaints of harassment, and Deese regularly boasted that she could “get people fired” if she wanted. The Court found that Jeffries’ allegations “reflect an employer deliberately ignoring an employee’s attempts to assert federally protected rights.