Fifth Circuit Rejects Title VII Claims Based on Public Displays of Affection by Co-Workers

The Fifth Circuit considered sex discrimination and retaliation claims in Kummerle v. EMJ Corp., No. 12-10869 (5th Cir. May 16, 2013) (unpublished).  In affirming the district court's dismissal of the case, the Fifth Circuit offered an analysis that may be disturbing to plaintiffs.

The facts are simple.  The plaintiff's male supervisor and a female co-worker engaged in public displays of affection.  The public displays of affection were not sexually explicit.  For example, the male supervisor would rub the female co-worker's back at her desk.  The plaintiff and another female co-worker complained to management that this was creating an uncomfortable environment.  The plaintiff was then fired.  The plaintiff sued for retaliation, but the district court dismissed the suit under Rule 12(b)(6).  The Fifth Circuit affirmed.

The Fifth Circuit noted that a retaliation claim requires that the plaintiff have a reasonable belief that he or she is complaining about an unlawful employment practice.  The court then reasoned:

Kummerle argues that she reasonably believed that the public displays of affection between Catlin and Owens created a hostile work environment in violation of Title VII. We disagree.  As adequately explained by the district court, Kummerle’s pleadings contain no indication that the consensual intimate conduct between Catlin and Owens was either motivated by a discriminatory intent toward women or sufficiently egregious to come close to establishing an unlawful work environment.  The reasonableness of Kummerle’s belief is further undermined by the fact that she fails to cite any case holding that public displays of affection in the workplace are sufficient to cause a violation of Title VII.  Offensive and unprofessional behavior by co-workers is not, alone, a violation of law. Therefore, the district court correctly held that Kummerle’s retaliation claim fails as a matter of law.

(citation omitted).  Because this was an unreported decision, that was the full extent of the court's reasoning.

Both grounds for the court's decision raise serious questions:

  1. Is it really necessary that the the male supervisor and the female co-worker have been motivated by discriminatory animus?  If so, can other forms of offensive conduct (posters, jokes, etc.) be defended on the ground that the actor had no discriminatory animus, but was just innocently insensitive?
  2. Is the high standard that the Fifth Circuit has set for sexual harassment cases really going to be incorporated into the legal standard for retaliation?  Perhaps the conduct in this case was not so severe and pervasive as to alter the terms and conditions of the plaintiff's employment, but is that a valid reason for ruling that an employer could lawfully terminate the plaintiff for complaining about it?

Perhaps the Fifth Circuit's end result is justified under the law, but the court's specific reasoning raises questions that will doubtlessly recur in future cases.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes

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