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."

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