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No general civility code here: No employer liability for supervisor who pushed for sex with his employee’s wife

April 2nd, 2014  |  Joy Waltemath

Those who fear that Title VII is being interpreted by the courts to devolve into the dreaded “general civility code” will be encouraged by an Eleventh Circuit decision last month. It decisively affirmed summary judgment to an employer in a Title VII action brought by an employee who alleged that his supervisor had engaged in ongoing efforts to solicit sex from the employee’s wife. You read that right: The supervisor wanted to have sex with the employee’s wife and sought the employee’s help in convincing her.

Soliciting the employee’s wife. While working in the maintenance department of a school district under the direction of his supervisor, a “friend,” the employee said his supervisor continuously tried to solicit the employee’s wife for sexual activity. Specifically, he claimed that his supervisor (1) offered his wife money in return for sex; (2) offered money to the employee – maybe even a promotion! – if he could convince his wife to have sex with the supervisor; and (3) proposed the idea that the two men have sex with the employee’s wife and other women.  Apparently, the supervisor’s antics did not stop there, as he also asked the employee to persuade waitresses to have sex with him in exchange for money.

We’re friends, bro; I just want you to pimp out your wife. On appeal, the Eleventh Circuit in an unpublished opinion acknowledged that the supervisor’s conduct was “highly offensive and inappropriate” but decided there was no error in granting the employer’s motion for summary judgment. And clearly, there was no evidence suggesting the supervisor’s treatment of the employee was based on the employee’s gender; thus, no reasonable juror could conclude that the supervisor discriminated against the employee because of his gender. From the court’s perspective, the supervisor was attracted to his friend’s wife, and the supervisor was talking to the employee “as a friend.” Not even a general civility code violation among friends, apparently.

Additionally, there was no evidence that the employee suffered from any adverse employment action that had any causal link, either directly or indirectly, to his supervisor’s conduct. Focusing on the men’s personal friendship, the court engaged in no discussion of the coercive impact of a supervisor leaning on an employee daily for sexual favors from his wife. Personally I wonder about the quality of the men’s friendship; after all, the employee pursued the claim all the way to the Eleventh Circuit. In any event, the court affirmed summary judgment for the employer here.

But not so frivolous as to award attorneys’ fees. The Eleventh Circuit had a different view on the issue of attorneys’ fees and costs, ruling that although the employer won on summary judgment, it was not entitled to fees and costs. In a Title VII case, a district court may award attorneys’ fees and costs to a prevailing defendant only when the “plaintiff’s action was frivolous, unreasonable, or without foundation,” the appeals court wrote. So an employer that prevails must surpass a threshold showing that the employee’s is case “markedly weak” or “exceedingly weak” – instead, it must demonstrate that the employee’s case is “so patently devoid of merit as to be frivolous.”

Weak yes; frivolous … well … While perhaps weak, the employee’s claim here surpassed that threshold requirement. For example, the employee could not rely on any binding precedent because a factually similar HWE gender discrimination claim had never been addressed in the Eleventh Circuit. So there was no circuit precedent “squarely foreclosing” the employee’s legal argument. In fact, the court said it was “difficult to say” whether the employee’s claim was frivolous. Plus, the employee had in fact provided evidence in support of his claim. Maybe not enough to defeat summary judgment, but that did not reduce his claim to frivolous, so the appeals court reversed the district court’s decision granting attorneys’ fees.

The case is Richardson v Bay District Schools.

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