Most people know overtly sexual comments are likely to violate their employer’s rules and could lead to sexual harassment claims. But many don’t understand the comments are a problem not just because they’re sexual. That’s because the sexual content can be used as evidence to show other nonsexual negative treatment was motivated by discriminatory intent. As a result, the sex-based misconduct is just one aspect of the working environment you must consider—whether overtly sexual or not—to determine whether an employee was subject to a hostile work environment.

In the following opinion from the 10th Circuit, you can learn more about how employees should be trained to avoid harassment and how supervisors should deal with rumors and other inappropriate behavior.

Quick summary of court action
The Wyoming Highway Patrol (WHP) was sued by Delsa Brooke Sanderson, a female state trooper, who alleged discriminatory demotion, sexual harassment, and retaliation for complaining about the behavior. The trial court dismissed the sexual harassment and retaliation claims without a trial, and a jury found in the WHP’s favor on the discrimination case. Sanderson appealed the dismissal of her sexual harassment and retaliation claims. The 10th Circuit found partially in her favor and sent the harassment claim back to the lower court for a jury trial.

Successful state trooper
Sanderson had a positive career with the WHP. During the first seven years of her employment, she received positive reviews, a “Trooper of the Year” nomination, and a commendation award. However, she was subjected to various rumors claiming she was sexually promiscuous and used sex to gain advantages:

• Rumors referred to Sanderson as the “division bicycle,” implying she had sex with her colleagues.
• If she developed friendships with male colleagues, rumors would begin that they were having sex.
• Rumors also were passed around that she flirted and used sex to get a new patrol car.

The court noted the evidence showed she faced resistance because she was very assertive and direct, which others found hard to take from a female trooper.

In 2015, Sanderson was appointed to “Division O,” which provides security for the governor and state legislature. She also was trained as the WHP’s first female K9
handler and assigned to sweep the legislature’s chambers for explosives. Her Division O coworkers continued to offer some of the sex-based resistance she had faced in her previous work groups. Some troopers said the unit “does not accept females.”

Rumors that Sanderson was having an affair with someone in the chain of command were routine, and she was accused of having exchanged sexual text messages with a captain in the division. Also, she was accused twice of flirting or becoming too familiar with men outside of the WHP whom she met in the course of her duties. In addition, after she was reprimanded for not promptly answering a radio call, she responded to a call while she was in the bathroom. When the trooper who called her learned where Sanderson was, he told her not to answer the radio when she was “douching.”

In addition to the above examples of sexually related comments, Sanderson claimed her coworkers ostracized and ignored her. When the WHP’s K9 team was at a conference in San Diego, they ignored her greetings when she approached them. At another event, two troopers were standing together when she approached. One immediately walked away. The other responded to her question about how he was doing and then walked away.

Sanderson also reported she asked a question of two male troopers who were in the same room. One stated he didn’t know the answer and asked the other, and then both got up and left the room without further comment. Finally, she testified a trooper brought breakfast burritos to a training meeting for all the people at the session except her.

Sanderson talked to supervisors at least four times about the treatment she received from her Division O coworkers. She also texted a supervisor directly, stating:

I have had enough of being treated like shit by my coworkers. It’s no wonder no female makes it in the O division. The guys in the division make it right miserable for any female.

Sanderson was demoted from Division O after a February 2016 incident. She was working with a dog trainer under contract with the WHP. In the course of a difficult training session, she told the trainer to “stop being an asshole.” She was disciplined for the comment and (several weeks later) demoted from the division to her previous position.

District court action
Sanderson sued the WHP for retaliation, sexual harassment, and discriminatory demotion.

Employer retaliation. The district court dismissed Sanderson’s retaliation claim because her discrimination charge filed with the Equal Employment Opportunity Commission (EEOC) alleged retaliation but based the claim on different events than she laid out in her lawsuit. A retaliation claim can go forward in court only if it has been previously alleged in a discrimination charge.

Sexual harassment. The district court also dismissed Sanderson’s sexual harassment claim, finding the actions she alleged couldn’t meet the requirement that the conduct was severe or pervasive.

Discriminatory demotion. The district court allowed Sanderson’s discriminatory demotion claim to go to trial, but a jury rejected it and found in the WHP’s favor.

After the trial, she appealed the dismissal of her retaliation and sexual harassment claims to the 10th Circuit.

Sanderson didn’t file charge based on allegations of her retaliation claim
Title VII of the Civil Rights Act of 1964, the federal discrimination law under which Sanderson filed her lawsuit, requires employees to submit a discrimination charge to the EEOC before launching the suit. The charge should contain facts about the alleged retaliatory actions. When the employee files her lawsuit, its claims must be within the reasonable and likely scope of the agency’s investigation based on the allegations of the charge.

Sanderson’s lawsuit alleged she was demoted in retaliation for complaining to her captain and other supervisors about unequal treatment by her male coworkers. But her charge claimed she was retaliated against through a poor performance evaluation because she told the WHP she was filing an EEOC complaint. The trial court and the appeals court recognized she was offering two distinct theories of retaliation.

Sanderson argued her retaliatory demotion claim should be allowed to proceed, even though it wasn’t alleged in the charge, because she had disclosed the theory in later correspondence with the EEOC (when she responded to the WHP’s position statement). In the letter, she did indeed notify the agency she had complained to her supervisors on four occasions before the demotion.

The 10th Circuit rejected Sanderson’s arguments. Her retaliation claims in the lawsuit were required to fall within the scope of the allegations in the EEOC charge itself. Other documents she submitted to the agency later could not be considered in determining whether she had met the requirement.

The EEOC charge is supposed to give the employer notice of the alleged violation and the agency a chance to resolve the claim through voluntary resolution. Therefore, the charge itself must include the facts pertinent to the employee’s claim. Sanderson’s allegations that her demotion was in retaliation for earlier complaints weren’t presented in the charge, and the district court correctly dismissed the claim.

Jury should decide hostile work environment claim
While the trial court found Sanderson’s evidence of harassment was insufficient, the 10th Circuit viewed it differently and sent the claim back for a jury trial. The appeals court reasoned the trial court viewed the harassment evidence too narrowly. Instead, her allegations should be considered in the context of the “totality of the circumstances,” not through a segmented comment-by-comment approach.

Sanderson produced evidence of sex-based acts and statements—colleagues calling her the “division bicycle” and rumors that she flirted and sexually engaged with superiors and used sex to get a new patrol car and the promotion to Division O. She also showed some members stated the division didn’t accept females. The evidence was directly relevant to her sexual harassment allegations.

Sanderson also produced evidence of hostile comments or actions that appeared sex-neutral, such as teammates ignoring or walking away from her and a colleague buying breakfast burritos for everyone at a training except her. According to the 10th Circuit, a jury could find the nonsexual hostile acts were part of the harassment because of her sex, particularly in light of the evidence that at least some members believed Division O “as a whole” didn’t accept females.

Sanderson also alleged the WHP fostered and tolerated the Division O culture and that superiors outside the unit were complicit and responsible for the environment she experienced. As a result, conduct preceding her promotion to the unit, like the “division bicycle” comment and rumors of her sexual activity with superior officers, was relevant to support her allegations about the environment within the organization generally.

Based on its expansive view of the pertinent evidence, the 10th Circuit took issue with the district court’s decision that a jury couldn’t find the misconduct Sanderson experienced was severe or pervasive. To meet the standard, a jury must find the workplace is permeated with discriminatory intimidation, ridicule, and insults based on the totality of the circumstances. The jury should consider the conduct’s frequency and severity, its physically threatening or humiliating nature, and any resulting interference with work performance. Mere offensive utterances or isolated or fleeting acts, however, wouldn’t be enough to meet the standard.

The rumors about Sanderson’s sexual promiscuity were persistent and repeated, including speculation about relationships with a variety of senior officers. Her coworkers also suggested she used sex to obtain her promotion and K9 officer role. And the evidence indicated multiple troopers circulated the rumors and accusations. Also, a jury could conclude her colleagues’ nonsexual adverse actions were motivated by—and part of—the sexual discrimination against her. As a result, a Wyoming jury should decide the questions, the appeals court decided. Sanderson v. Wyoming Highway Patrol, No. 19-8025 (10th Cir., 9/30/2020).

Lessons learned
Concerning lessons for employers jump off the pages of the Sanderson opinion.

First, you can’t disregard negative treatment of employees as inconsequential simply because it isn’t overtly sexual. The conduct can’t be viewed in isolation. In many cases, supervisors or the HR department won’t know if the sex-neutral negative conduct is isolated or part of a broader set of circumstances that might include overtly sex-based harassment. As a result, the sex-neutral appearance of a situation or a conflict should be confirmed through questions about whether other negative conduct has occurred.

Second, the 10th Circuit’s opinion raises concerns about how employers should deal with rumors. Much of Sanderson’s evidence was based on rumors that her colleagues repeated, some of which she didn’t know about until after filing the lawsuit. The appeals court seemed willing to accept at face value her allegations about the rumors’ impact.

While earlier cases had taken a dim view of rumor evidence, Sanderson’s ruling suggests you can no longer ignore complaints or reports about workforce rumors adverse to an employee, particularly when they’re sex-based. It will always be difficult to address the rumors effectively. At the very least, however, you should train supervisors to stop the passing of the rumors immediately and coach their teams to avoid violating the policy.

Finally, Sanderson’s case shows there is no way to predict how much bad behavior is too much, and no complaint can be ignored. If her evidence is true, the WHP received her complaints, yet the appeals court opinion says nothing about the agency’s response. The omission of any discussion about the handling of Sanderson’s text message suggests the response was at least ineffective and perhaps nonexistent.

Your first defense against allegations of coworker harassment is a prompt and thorough investigation followed by corrective action that stops the harassment. You can’t take advantage of the defense, however, if supervisors aren’t held accountable to a requirement that all complaints they receive or misconduct they observe be taken seriously at face value and elevated to the right resource for investigation.