United States: Court Rules Game Over For Worker's Harassment And Retaliation Claims

Last Updated: December 15 2016
Article by Ogletree Deakins

Affirms Trial Judge's Decision That Comments Were Not Directed at Worker "Because of" His Sex

A federal appellate court recently up- held the dismissal of a lawsuit brought by an employee who claimed that he was sexually harassed by male coworkers and then fired for complaining about the alleged harassment. The Seventh Circuit Court of Appeals held that the worker failed to prove that he was harassed "because of" his sex. The court also found that he did not rebut the employer's explanation for his discharge. Lord v. High Voltage Software, Inc., No. 13- 3788, Seventh Circuit Court of Appeals (October 5, 2016).

Factual Background

Ryan Lord joined High Voltage Soft- ware, Inc. as an associate producer in September of 2006. Lord was initially assigned to the Omni team, which was named after a video game under development at the time.

Lord claimed that in January of 2007, his male coworkers began teasing him about his alleged interest in a female audio engineer. They would comment that he had "the audio bug" and would ask if he had "[taken] care of the audio bug" when the female engineer was in the area.

On June 5, 2007, Lord sent an email formally complaining about the audio bug joke to Maggie Bohlen, the company's HR director. Following an investigation, Bohlen met with Lord and explained to him that the audio bug joke did not amount to sexual harassment. She then directed Lord to report any further incidents of alleged harassment to HR "immediately."

After this meeting, the company's president reassigned Lord to the Responder team to avoid further "team dynamic issues." Lord also met with management for his regular performance review. During this meeting, Lord's recent com- plaints about harassment were discussed and he again was told to report any behavior that "crosse[s] the line."

As part of the Responder team, Lord shared an office with Nick Reimer, an- other associate producer. Between July 18 and July 27, Lord claimed that Reimer made unwanted physical contact with him on four separate occasions. One incident involved Reimer allegedly grabbing Lord between the legs while Lord was writing on a white board. On another occasion, Reimer slapped him on the buttocks while he was talking to a coworker. Lord did not report these incidents at the time, but he did ask Reimer to stop.

On July 30, Lord went to the office on his day off to discuss Reimer's behavior with HR. The next day, the company's executive producer, Chad Kent, issued a disciplinary "write up" to Reimer and Lord after a DVD malfunctioned during his presentation. Lord immediately responded to Kent by email, accusing the company of retaliation. After speaking with Lord and investigating the DVD malfunction, Kent withdrew the disciplinary action and apologized for  "misunderstanding [Lord's] level of involvement with this issue."

On August 1, 2007, the company fired both Reimer and Lord. Reimer's employment was terminated based on his harassment of Lord. According to the company, Lord was discharged for "(1) failing to immediately report incidents of harassment to Bohlen as instructed; (2) failing to report incidents of harassment to Kent, again as specifically instructed; (3) obsessively 'tracking' the 'performance, timeliness, and conduct' of his coworkers; and (4) insubordination."

Shortly thereafter, Lord sued High Voltage alleging same-sex harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964. The trial judge dismissed the lawsuit, and Lord appealed this decision.

Legal Analysis

Lord relied on the audio bug comments and Reimer's unwanted physical conduct to support his harassment claim. However, the Seventh Circuit in a 2-1 decision held that Lord failed to show that his coworkers harassed him "because of" his sex.

To state an actionable same-sex harassment claim under Title VII, the Seventh Circuit Court of Appeals noted, there must be some evidence that the harasser was homosexual. According to the court, "Nothing suggests that Reimer was homosexual, and Reimer's behavior was not so explicit or patently indicative of sexual arousal that a trier of fact could reasonably draw that conclusion." The court also found that neither the audio bug comments nor Reimer's conduct "reflect a general hostility to the presence of men in the workplace." Absent evidence of sex discrimination, and not just horseplay, the court upheld the decision to dismiss his harassment claim.

The Seventh Circuit also rejected Lord's retaliation claim. The court agreed with the trial judge that "Lord's complaints about his coworkers did not amount to protected activity because they did not concern the type of conduct that Title VII prohibits." The court also found that Lord failed to show a causal connection between his complaints and firing. Even with the close timing between the two (in this case, two days), the court held that there was "no evidence from which a reasonable jury could infer that High Voltage's reasons for firing Lord were pretextual."

Practical Impact

According to Carol Poplawski, a shareholder in the firm's Chicago office, "this decision is important for two rea- sons. First, it reaffirms that mere work- place banter may not support a claim for harassment under Title VII. It is also noteworthy that the company took action immediately after receiving both complaints from the plaintiff. Second, even though the outcome was positive in this case, employers must be mindful of taking action against workers after they have filed a complaint. Such decisions must be well-documented and you must be ready to prove that the worker would have been fired even absent his or her complaint."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions