Any employment lawyer knows that, when assessing claims of “disparate treatment,” it’s less about what exactly happened and more about how the plaintiff was treated when compared to similarly situated employees. The Seventh Circuit recently looked at just that issue in reinstating the harassment and sex discrimination claims of a former Indiana prison employee who was fired for having sex at work. Orton-Bell v. Indiana, 2014 U.S. App. LEXIS 13993 (7th Cir. July 21, 2014). The reason? The plaintiff produced evidence that she was ultimately disciplined more harshly than her “similarly situated” male “companion,” and that she was subjected to “a constant barrage of sexually charged comments.” The court found, however, that night-shift employees having sex on the plaintiff’s desk did not support her harassment claim because that behavior wasn’t motivated by her sex.
What was going on at the Pendleton Correctional facility – a maximum security prison in Pendleton, Indiana? Orton-Bell was a substance abuse counselor at Pendleton. An investigator looking for security breaches discovered that night-shift employees were having sex on Orton-Bell’s desk and told her this. She complained about it. The investigator said he was not concerned about the sex, but suggested Orton-Bell “wash off her desk every morning.”
The situation was brought to the superintendent’s attention and he agreed, essentially saying that – as long as inmates were not involved – the staff could do what they wanted. Immediately afterward, however, the superintendent learned that Orton-Bell was having an affair at work with the Major in charge of custody, Joesph Ditmer (ironically, they were having sex on his desk). Both were terminated, and both appealed their terminations. The prison settled Ditmer’s appeal and then called him to testify against Orton-Bell at her appeal, which she lost.
As a result of being fired, Orton-Bell was no longer eligible for employment with the Department of Corrections in any capacity. With the settlement of his appeal, on the other hand, Ditmer was permitted to resign, retain his pension and continue working for the prison as a contractor.
Orton-Bell sued, and the district court granted summary judgment for the prison, finding that the two employees were not similarly situated. The Seventh Circuit reversed, finding that while the employees had different chains of command, they had the same “ultimate supervisor” and were fired “for the same conduct in violation of the same standards.” The different treatment came about in how the matter was resolved.
The appellate court also reinstated Orton-Bell’s hostile environment sexual harassment claim. She alleged that male employees watched female employees while they had their daily pat-downs and made comments like “I need a cigarette because that’s as good as sex.” She also alleged that a former superintendent told Orton-Bell she couldn’t wear jeans to work because “her ass looked so good that she would cause a riot.”
As to people having sex on Orton-Bell’s desk? That was not harassment because those actions weren’t motivated by Orton-Bell’s sex. The outcome would be different, said the court, if a male employee’s office was used “for the same purpose and a supervisor put an end to it.” Orton-Bell’s office was used, however, not because she was female but because it had curtains and could be accessed by a master key, offering both privacy and easy access.
There are many obvious “take aways” from this case that are not necessary to explain. But a less obvious one is that the disparate treatment resulted from the settlement of Ditmer’s appeal, not from the discipline imposed as a result of the less than optimal workplace conduct of Orton-Bell and Ditmer. This is something for employers to keep in mind when confronted with deciding the fate of two or more employees engaged in similar bad behavior.