CEO comments about rape, ‘bossy’ females suggested sexualized assertion of power, hostility to women

By Joy Waltemath

By Marjorie Johnson, J.D.

A female executive who, after complaining about the male CEO’s unwelcome touching and repeated sex-based comments (including about rape and “bossy” women), had her bonus cut and responsibilities taken away, and then after hiring an attorney was placed on paid leave and publicly decried as having made “false” allegations, plausibly alleged hostile work environment and retaliation claims under federal, state, and city law. The totality of the CEO’s alleged conduct, including that which was not obviously sex-based, could be deemed as a campaign to assert power over her because of her sex, a federal court in New York determined in denying the defendants’ motion to dismiss (Johnson v. J. Walter Thompson USA., LLC, December 13, 2016, Oetken, J.).

Rape comments cause discomfort. The employee joined J. Walter Thompson as a director in 2005 and in 2009, became its chief communications officer. She began reporting to the new CEO in January 2015, who allegedly commented to a group that he thought he might be “raped at the elevator” of their hotel. After she told him his comment made her uncomfortable, he responded that “American women are too sensitive” and later walked over to her desk and asked her in front of others to come to him so he could “rape” her in the bathroom. Later on, he burst into a meeting and asked her which female staff member he could rape.

Females “too bossy.” The CEO continued to regularly make sexualized comments and referred to females as being “too bossy.” She claimed he also rubbed her shoulders and stroked her face, and “grabbed” her by the throat and the back of the neck multiple times. Additionally, he made numerous other offensive comments about Latinos and Jewish people.

Waning responsibilities, bonus cut. The employee complained to the chief talent officer, who implied the CEO’s touching was based on “affection,” while another executive suggested she remain quiet. Meanwhile, the CEO cut her bonus and stopped inviting her to executive meetings. After she continued to complain, he took away some of her duties.

Placed on paid leave. The employee eventually reported the sexually hostile environment to the CFO, who then provided her and other employees a questionnaire asking them to certify that they were not aware of any illegal conduct at the company. She hired an attorney, who notified the company that she believed she had been subjected to unlawful discrimination and retaliation. She was placed on paid leave pending an investigation, and the CEO, through the parent company, publicly denied her “outlandish allegations” and stated the investigation “found nothing.”

Objectively hostile environment. Finding that the employee plausibly alleged an objectively hostile work environment, the court stated that the CEO’s repeated unwanted touching suggested a pattern wherein he asserted physical power over her without her consent. Moreover, she claimed he made potentially threatening comments about “rape” and once ushered colleagues out of his office but held her behind, saying, “let’s go talk about sex now.” He also purportedly commented that a female senior global executive needed to be “hogtied” and “raped into submission” and called a female director “young, willing, and ready.”

Sexualized assertion of power. The court rejected the company’s assertion that many of the CEO’s comments were not gender-motivated since many were made in mixed company. Even if that were so as to some comments, the court considered all of his comments with “a full appreciation of the social setting or the underlying threat of violence,” and recognizing that “women are disproportionately victims of rape and sexual assault.” Indeed, the employee alleged several interactions and comments by the CEO that, on their face, were sex-based. Moreover, his repeated references to sex and rape—some coupled with physically intimidating conduct—reveal a gendered component of the conduct, sometimes rising to the level of explicit gender animus. In threatening to “rape” her (even jokingly) and asking which other female employees he could rape, he asserted power over her in an explicitly sexualized and gendered form.

Hostility toward women in leadership roles. Through both his words and his actions—even if not overtly sexual—the CEO exhibited hostility toward the idea of women exercising power in the workplace. For example, his references to the employee as being “bossy” could be understood as invoking a double standard for men’s and women’s leadership in the workplace, which is impermissible under Title VII. Thus, the totality of his alleged conduct could be read as a campaign to assert power over the executive-level employee—”to sexualize her, to demean her, to professionally diminish her, and to deprive her of bodily security”—because of her sex.

Individual liability. In addition, the employee adequately alleged individual liability on the CEO’s part under the New York State Human Rights Law and New York City Human Rights Law, in which individual defendants may be sued in their personal capacities for aiding and abetting discrimination, since her allegations support a finding that the CEO actually participated in the conduct giving rise to a discrimination claim.

Retaliation. The court also denied the defendants’ motion to dismiss the employee’s retaliation claims, in which she asserted that after she complained internally, she suffered a diminished bonus, reduced responsibilities, and a hostile work environment. She also argued that the retaliation culminated after her attorney’s letter and the filing of this lawsuit, as she was placed on paid leave, the defendants made disparaging comments about her in the press, and previously planned expansions to her team were canceled. This conduct, considered as a whole, demonstrated that the employee suffered “employment consequences of a negative nature” that could chill other employees from speaking up.

Source:: Employment Law Daily Newsfeed