500 Eagle Gate Tower
60 East South Temple
Salt Lake City, Utah 84111
Court offers definitive explanation of same-sex sexual harassment, and permits an employee’s claim that her employer had engaged in such harassment to go to trial.
Diane Dick began working for Phone Directories Company, Inc. in 1997 in its Vernal, Utah office. She quickly became a top producer in Utah, earning various awards and trips for her sales. In 2000, Dick’s direct supervisor was canned. Thereafter, Dick began using her former supervisor’s office, which apparently angered one co-worker.
Later in 2000, Dick’s employer hired Laura Bills as the Vernal office manager and Dick’s immediate supervisor. From that point on, Dick claims that she was subjected to sexual harassment such that her working environment was permeated by sexually explicit banter, insults, lewd jokes, gestures, games, and devices.
Dick’s workplace in Vernal consisted largely of women. According to Dick, three female co-workers and Bills engaged in the sexual harassment. One co-worker, Camie Hinkle, was alleged to have been the primary offender. Hinkle had no supervisory authority over Dick.
According to Dick, Hinkle would approach Bills and another female co-worker from behind and make sexual gestures with her body toward them. She would put her foot in Bills’ lap and say, “Yo, buff b*tch. How does that feel? Yo, buff b*tch. You like that.” On other occasions, she would pinch Bills’ breast and buttocks. She also allegedly hung a replica of a penis from the ceiling and brought a pillow to the office that she would kneel on while referring to oral sex with a man.
The only behavior Hinkle directed toward Dick consisted of two attempts to pinch Dick’s breasts, and on one occasion, at a lunch hour break at a novelty shop, she shoved a sex toy in the shape of a penis toward Dick.
Dick’s other co-workers engaged in other conduct that apparently did not involve any physical contact with Dick and consisted mainly of statements of a sexual nature or connotation.
Dick alleged that some of her co-workers who engaged in this conduct were gay. She alleged that the office bulletin board was decorated in rainbow colors-which symbolized gay pride-and that she witnessed Bills and an openly gay co-worker lock themselves into various rooms at the office for extended periods of time.
In November and December 2000, Dick complained to Bills about the office environment. Bills allegedly said, ”[t]his is going to be a fun office” and ignored her complaints. After this complaint, Dick alleges that Bills and her co-workers began to retaliate against her by demonstrating an increased hostility toward her, writing her up on insufficient bases, and circulating an office memorandum instructing employees to refrain from using “foul language,” “personal gestures,” and being “loud and obnoxious.” Dick also alleged that at one point, Bills threatened to fire Dick if she complained to Bills’ supervisor. This threat was never carried out.
In March 2001, Dick filed a charge of discrimination with the Utah Anti-Discrimination Division. Dick then filed her lawsuit against her employer in federal court, alleging same-sex sexual harassment and retaliation in violation of Title VII, and negligent employment of harassers under Utah law. Dick remained employed at Phone Directories Company throughout these stages of her lawsuit.
Before the case got to trial, the trial court dismissed Dick’s lawsuit, finding that Dick had not shown that the sexual harassment was because of her sex. The Court also threw out Dick’s retaliation claim finding that Dick had failed to show an adverse employment action. Dick then filed an appeal with the United States Tenth Circuit Court of Appeals.
Dick appealed the trial court’s dismissal of her same-sex harassment claim and her retaliation claim. Dick was successful in overturning the trial court on the same-sex harassment claim, but lost on her retaliation claim.
The Tenth Circuit explained that a sexually hostile work environment is prohibited by Title VII. To establish such a claim four elements are required: (1) the employee is a member of a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment was based on sex; and (4) the harassment was so severe or pervasiveness that it altered a term, condition, or privilege of the employee’s employment and created an abusive working environment.
The first and second element were not in dispute between Dick and her employer. The only dispute existed over the third element dealing with Dick’s ability to show that the harassment by her co-workers and immediate supervisor was based on Dick’s sex.
In addressing this element, the Court relied extensively on the United States Supreme Court’s decision in Oncale v. Sundowner Offshore Servs., Inc., a 1998 decision defining same-sex harassment. In dismissing Dick’s claim of same-sex harassment, the trial court mistakenly concluded that in order for Dick to show same-sex harassment in violation of Title VII, she must show both homosexuality of her harassers and sexual motivation. To clarify this aspect of same-sex harassment, the Tenth Circuit reversed the trial court and held that whether same-sex harassment is engaged in because of the victim’s sex hinges on whether the harasser’s conduct is motivated by sexual desire. The Court was quick to point out, however, that this is not the only way to establish same-sex harassment. The Court noted that it can also be shown when a woman harasses another woman 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. Therefore, the victim of same-sex harassment need not establish that her harasser is homosexual.
In Dick’s case, Dick was not required to establish that Bills or any other co-worker harassing her was homosexual. Instead, Dick could satisfy her burden of proof under Title VII by providing evidence that her harassment by these individuals was motivated by sexual desire. The Court found that there was sufficient evidence of this to justify the case going to a jury. The Court pointed to the fact that on more than one occasion Hinkle touched Dick’s body. The Court noted that such conduct is seldom carried out without some sort of sexual motivation.
The Court also pointed to the fact that Hinkle and Bills engaged in same-sex sexual conduct with other people in the workplace. For instance, Hinkle rubbed Bills’ crotch while asking Bills if she liked it. There was also evidence that Bills had locked herself in a room at the office with an openly gay co-worker. According to the Court, all of this evidence could lead a jury to find that Bills tolerated sexually-motivated conduct in the workplace.
Turning to Dick’s retaliation claim, the Court stated that Dick was unsuccessful in proving that she was subjected to an adverse employment action. To prove retaliation, an employee must show (1) she engaged in protected opposition to discrimination; (2) the employer took an adverse employment action against her; and (3) there was a causal connection between the protected activity and the adverse action.
While Dick was able to show that she engaged in protected opposition to discrimination, the Court found that Dick failed to show that she was subjected to an adverse employment action. The unrealized threat of termination was not an adverse employment action. Moreover, the alleged hostility of her co-workers toward her, assuming it was severe, was not shown to have been the result of Dick’s complaints of discrimination.
The Court reversed in part the trial court’s dismissal of Dick’s lawsuit, and sent the case back to the trial court for a trial on the same-sex harassment claim. Dick v. Phone Directories Company, Inc., 2005 WL 327702 (10th Cir. Feb. 11, 2005).
Employers need to understand that same-sex harassment requires an employee to show, through competent evidence, that her harassment was based on her sex. In this case, the Court clearly defined this element of an employee’s case by holding that one way, but by no means the only way, of showing that her harassment was based on her sex is to establish that the harassing conduct arose out of sexual desire and that her harasser is gay. An employee who makes this showing establishes that the harassment took place because of her sex, regardless of whether she has also demonstrated that her harasser is gay. Therefore, whether same-sex harassment is based on an employee’s sex turns on whether the harasser acted out of sexual desire.
It is amazing that workplace behavior such as that exhibited in this case still goes on in the workplace. Management must take the initiative to teach and train all employees that such conduct is not acceptable, then step up to the plate to stop it when it occurs.