Rivera v. Brennan: Is farting sexual harassment?

Flatulence Post at the AVAM

Rivera v. Brennan, No. 3:16-cv-330 (VAB) (D. Conn. Jan. 31, 2018), is a case with amusing facts that highlights the distinction between conduct that is sex-based and conduct that is merely crude and offensive. Among the conduct cited by Carmen Rivera, a Postal Service worker, she alleged that she was discussing a work matter with her supervisor when he stood up behind his desk to get a bottle of water, and she saw that his belt was open. She noticed some "ruffling [] of his shirt," and she also saw that his zipper was slightly open, but she could not see his underwear. The supervisor apologized that he had just finished eating and his belt was bothering him. Rivera alleged that, about 10 minutes later during the same meeting, she saw the supervisor "lift[ ] his leg up, his buttocks or whatever, his butt, and just pass[ ] gas, loud, and obnoxious." According to Rivera, she said, "Oh, my god. I don't believe you just did that"; and he responded, "Ah, my grandmother said, 'Better out than in.'"

Judge Victor Bolden rejected Rivera's contention that her supervisor's alleged conduct during this meeting was unlawful sexual harassment. He noted that Rivera did not present any evidence that her supervisor undid his pants as she entered his office, and she compared his apology to someone who had left the restroom having inadvertently left his pants unzipped. In addition, although Rivera stated that she may have used the word "sexual" when she recounted the incident to her boyfriend, she "recognized that [the supervisor] made no sexual advances or physical contact with her, while alone with her in his office." Rivera further testified that, being a woman, she was "extremely offended" by the supervisor's conduct. However, Judge Bolden noted that she also "recognized that [the supervisor] treated female employees no different from male employees, stating that '[h]e was mean to everybody.'"

In concluding that Rivera had not shown that her supervisor's conduct was sex-based, Judge Bolden relied, in part, on the absence of any evidence that the alleged conduct was sexual. I mention this because the relationship between whether conduct is sexual and whether it is sex-based is confusing and merits a brief discussion. Title VII of the Civil Rights Act does not prohibit sexual harassment per se, but conduct that is based on sex, meaning conduct directed at an individual for being male or for being female. In Oncale v. Sundowner Services, Inc., 523 U.S. 75 (1998), the Supreme Court explained:

We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. "The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring).

Although courts generally presume that sexual conduct directed at a member of the opposite sex is sex-based, courts are more reluctant to presume that sexual conduct is sex-based when directed at a member of the same sex. In particular, courts have noted that if a man directs sexual conduct at another man, that conduct may merely be an example of juvenile provocation. 

If similar sexual conduct is directed at members of both sexes, then absent some other evidence that employees are targeted because of their sex, the sexual nature of the conduct won't be enough to establish that it is sex-based. For example, in Smith v. Hy-vee Inc., 622 F.3d 904 (8th Cir. 2010), the court concluded that Dru Smith, a bakery department employee, failed to show that her female coworker's conduct was based on gender. The alleged conduct included molding genitalia out of dough, “dry humping,” smacking Smith on the buttocks, and telling sexual jokes. The court concluded that the evidence failed to show that the coworker was motivated by sexual desire toward Smith as the coworker subjected both male and female employees to the same kind of behavior.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.