Over the past several years, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) has significantly lowered the bar for plaintiffs to get to a jury trial on their claims of sexual or other forms of prohibited harassment. In the past, federal courts would routinely dismiss sexual harassment claims on the basis that the alleged conduct, even if inexcusable and degrading, was not severe or pervasive enough to constitute creation of a hostile work environment based on sex. More recently, the Fourth Circuit has allowed claims to proceed to trial that involve comparatively lower level or more indirect forms of harassment. This trend continued earlier this month in a case involving alleged rumors about an employee’s sexual behavior.

In Parker v. Reema Consulting Services, Inc., the plaintiff alleged that her manager and other employees began spreading rumors that she had received a recent promotion because she had slept with another manager. The employer argued that these claims did not constitute actionable harassment because they were not based on sex. In other words, they involved her personal conduct, and not anything gender-specific. The Fourth Circuit rejected this argument, noting the long history of women being accused of using sex to advance in the workplace. As such, the alleged statements involved gender stereotypes and rose to the level of a hostile work environment.

This decision calls into question the continuing validity of older Fourth Circuit decisions that generally rejected claims that comments about personal behavior were based on sex. For example, if a male employee complains that he was not promoted because his male supervisor was involved with a female employee who got the job, is this claim based on sex? While either a male or non-selected female coworker could make the same complaint, is the alleged favoritism that resulted in the promotion decision based on sex, because only women would presumably benefit from it? These older cases appear open for reconsideration based on the broader view of harassment adopted by current Fourth Circuit judges.