Title VII of the Civil Rights Act of 1964 (Title VII) makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Title VII’s prohibitions cover sex-based harassment that is “sufficiently severe or pervasive” such that it amounts to an actual change in an individual’s working conditions. In Sowash v. Marshalls of MA, Inc., No. 21-1656 (4th Cir. June 23, 2022) (unpublished), a panel of the Fourth Circuit Court of Appeals affirmed a decision in favor of the employer where the underlying conduct was, according to the court, not sufficiently severe or pervasive to support the plaintiff’s sex harassment claim.
The plaintiff worked at a Marshalls department store in Roanoke, Virginia. In 2017, seven years into her employment with Marshalls, the company hired a new assistant store manager (ASM). Although the new ASM did not directly supervise her, the plaintiff did not like the ASM’s leadership style. In February 2018, the plaintiff complained to Marshalls’ human resources office about being passed over for the ASM position and reported concerns about the ASM’s leadership style, including that he recently lied to and yelled at her such that she “dread[ed] going to work.” The plaintiff also contended that the ASM hovered around her on the sales floor, hugged her, and touched her arm. Specifically, the ASM put one arm around her shoulders and “stroke[d] his fingers up and down [her] arm.” The ASM did not make sexual comments toward the plaintiff, but did make rude and demeaning comments about himself and his sexual orientation (the ASM is a gay man).
There was apparently some discrepancy about the frequency of the conduct. The plaintiff said there were more than 10 hugs, but she could not recall if there were more than 20 or the dates on which the hugs occurred. The plaintiff reported the hugs to her supervisor and store manager but did not raise it directly with the ASM.
An additional incident occurred in April 2018 when the plaintiff returned to work following an unrelated leave of absence. The ASM hugged her and kissed her on the cheek, saying that he was glad she was back at work.
For separate reasons, Marshalls sent HR representatives to the Roanoke store to “assess the workplace environment and employee morale.” The plaintiff met twice with the HR representatives. She did not complain about the ASM during the first of these meetings, however, other employees did identify the ASM’s behavior, including inappropriate touching of female associates and rude language. The plaintiff reported the April 2018 kiss during her second meeting with HR.
Following its review, HR found that the ASM had acted inappropriately. The company issued a written warning and explained expectations moving forward, reviewed the company’s antidiscrimination and harassment policies with him, and set up weekly meetings. Subsequently there was no additional touching and a single isolated comment in July 2018. Marshalls transferred the ASM to another location in September 2019.
The district court concluded that the underlying conduct, though inappropriate, was not sufficiently severe or pervasive after considering the totality of the circumstances, including the frequency and severity of the conduct; whether it was physically threatening or humiliating, or merely an “offensive utterance”; and whether it unreasonably interfered with the employee’s work performance.
The court distinguished the conduct here from cases where there were sexual comments or propositions, more egregious conduct, and comments that were directed at the complainant rather than the alleged offender. Per the court: the ASM’s “non-sexual hugs and touching, compliments on [the plaintiff’s] appearance, and one kiss on the cheek are insufficient to prove severity or pervasiveness.” The court considered the hugs to be non-sexual (based on circumstances in which they occurred) and the kiss on the cheek to be an isolated incident. The other employees’ complaints about the ASM’s leadership style were “general workplace grievances” that do not support a sex discrimination claim. While “[h]arassment because of sex need not be motivated by sexual desire, and may be shown if a harasser displays hostility to women in the workplace or by comparative evidence of differential treatment of men and women,” no such hostility or differential treatment was present in this case. The court iterated that the ASM’s “sexual orientation nor the absence of any ‘sexual solicitation’ . . . would preclude a plaintiff . . . from prevailing” under Title VII.
The plaintiff argued on appeal that a jury should have decided whether the alleged harassment was sufficiently severe or pervasive. The trial and appellate courts agreed with the point generally, but also stated that a court can answer the question “[w]hen no reasonable jury – even if it credited all the Plaintiff’s evidence and drew all reasonable inferences in her favor – could find harassment rising to the level of “severe or pervasive.”
While the courts here were applying well-established Title VII case law, Maryland employers should remember that the definition of harassment under Maryland’s Fair Employment Practices Act (FEPA) will be different as of October 1, 2022. Senate Bill 450 made explicit that conduct need not be “severe or pervasive” to amount to harassment under FEPA. Instead, harassment includes:
- Unwelcome and offensive conduct, which need not be severe or pervasive, when:
- The conduct is based on race, color, religion, ancestry, or national origin, sex, age, marital status, sexual orientation, gender identity, or disability; and
- Submission to the conduct is made either explicitly or implicitly a term or condition of employment of an individual;
- Submission to or rejection of the conduct is used as a basis for employment decisions affecting the individual; or
- Based on the totality of the circumstances, the conduct unreasonably creates a working environment that a reasonable person would perceive to be abusive or hostile.
Sexual harassment, a form of harassment, includes conduct, which need not be severe or pervasive, that consists of unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature when: (1) submission to the conduct is made a term or condition of an individual’s employment, whether explicit or implicit; (2) submission to or rejection of the conduct is used as the basis for employment decisions about the individual; or (3) based on the totality of the circumstances, the conduct unreasonably creates a working environment that a reasonable person would perceive to be abusive or hostile.
While the Fourth Circuit found for the employer in this case, employers in Maryland should be mindful of the standard applicable in this state. Legal standards aside, employers should take all instances of workplace harassment seriously and take appropriate measures to confront such behavior so that inappropriate conduct does not continue.