By: Loyd Willaford and Clive Pontusson
In Roy v. Correct Care Solutions, the U.S. Court of Appeals overturned the decision of a lower court and determined that Tara Roy had presented sufficient evidence that she faced gender discrimination and hostility to bring her case for employment discrimination before a jury. Roy’s case involved many defendants, including the private company that employed her (Correct Care), the Maine Department of Corrections, and the individual supervisors who allegedly retaliated against her for complaining about sexual harassment.
Tara Roy was employed by a private company that provided medical services in Maine correctional facilities. In 2012, a Corrections Officer made sexual jokes and degrading comments about women to Roy. He also bent her over a chair and spanked her. Roy complained about the behavior, and the Officer was reassigned. A year later, a different Corrections Officer made other comments to Roy, like “a woman’s job is to be at home.” Roy reported these comments as well, but neither the company nor the department of Corrections took any action. Later, a third Corrections Officer responded to a work-related request from Roy by saying she should “stop being a bitch.” Roy and the third Corrections Officer had a romantic relationship that had ended, but he continued sending her explicit photos of himself. Roy was also repeatedly pressured by several other male Officers to give them confidential information about inmates that she was not allowed to give. Roy complained about these incidents to her superiors, but the investigations that occurred did not result in any discipline or corrective action. Roy also complained that at one point, despite her requests, Corrections Officers had not guarded prisoners in the infirmary. Roy claimed in an incident report that the Officers had been absent for 15 minutes. Video footage indicated that officers were only absent for two minutes. On the basis of this inconsistency, Roy’s security clearance was revoked and she was fired.
Roy argued that this course of events violated her rights in several ways. First, she argued that the repeated abuse she suffered at the hands of male Corrections Officers made her work environment hostile. She argued that this was specifically related to the fact that she was a woman. She further argued that her employer and the jail were both liable because they knew what was going on but did nothing to stop it. Second, Roy argued that her termination was retaliation for her efforts to bring this discrimination and abuse to light. She argued that the employer’s given reason—her misleading statement about exactly how long officers were not supervising the infirmary—was only a pretext to fire her. The real reason, she argued, was that she alleged sexual harassment by other members of the jail’s staff.
Correct Care Solutions argued that that Roy had not proven any of the critical elements of her lawsuit. It argued that, to the extent anyone harassed Roy, it was not obviously because of her identity as a woman. Correct Care also argued that even assuming Roy had been harassed, these were isolated incidents, and not the pattern of sexual harassment that is required to establish a hostile work environment. Second, Correct Care argued that Roy had not proven that her alleged dishonesty was not a valid independent reason for firing her. Finally, Correct Care argued that since the hostile work environment and the “retaliation” also involved employees of the jail, it was impossible for them to correct the behavior that Roy was describing.
The federal court did not determine that Roy had proven her case—but it did issue a forceful ruling that she had alleged enough facts to bring her case before a jury. The Court found that:
A jury could find on one of several theories that officers put Roy at risk, treated her rudely, ignored her, demeaned her, and filed reports complaining about her not only because of her whistleblowing but also because of her sex. […] Responding disrespectfully or dismissively to women’s requests, complaining about women’s performance, and ignoring or ostracizing women are paradigmatic ways to communicate to women that they are less worthy than or less welcome than men in a workplace.
The Court also explained that the facts on the record showed that retaliation may have been the reason she was fired. As the Court explained,
If CCS could have transferred Roy to one of its other facilities in Maine, as Roy says, then a jury could find that retaliatory animus was a but-for cause of CCS’s decision to fire her rather than transfer her. Significantly, CCS has not produced evidence that a transfer was impossible.
Finally, the court explained that the somewhat complex relationship between the jail and Correct Care Solutions did not mean that Roy could not bring a lawsuit against both of them:
A third party’s retaliatory or discriminatory animus can cause an employer’s adverse action where, as a jury might find here, the employer knew that animus motivated the third-party’s actions or demands and simply accepted those actions or demands.
For these reasons, the Federal Court of Appeals determined that Roy’s case should go before a jury to weigh the evidence of discrimination, hostility, and retaliation that she had presented.
This case is an example of the types of conduct which can constitute a hostile work environment based on sex. The standard that courts apply is that the bad conduct must be “severe or pervasive enough to alter the conditions of employment.” The bad conduct must also be either done or tolerated by management. In this case the repeated sexualized jokes and comments by Roy’s co-workers which management knew about and did not correct were enough to allow a jury to decide that they altered the working conditions to create hostile work environment.
The case also stands for the propositions that employers cannot hide behind third party contractors to avoid liability. If the employer knew or should have known about the third party’s bad conduct and did not correct it, the employer may be found liable if they had the means to correct the behavior and failed to do so.
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