Employment & Labor Insider

I really feel that the employer will win this case, for reasons I'll discuss below, but first . . .

A federal judge has said that starting malicious rumors that a male employee is a "womanizer" and having an affair with a female co-worker could give rise to a valid sexual harassment claim.

The court, in DeJong v. Great Wolf Lodge, was interpreting the Washington (state) Law Against Discrimination, which prohibits sexual harassment. But a few months ago, I blogged about a decision from the U.S. Court of Appeals for the Fourth Circuit, in which the court said that rumors that a woman "slept her way to the top" was a form of sexual harassment prohibited by Title VII.

Apparently, what's good for the goose is good for the gander. It appears that false rumors about an employee's sexual habits -- whether the employee is male or female -- may now be considered unlawful sexual harassment.

Employers and gossips, beware.

One other caution: As my colleague David Yudelson warns, falsely accusing anyone -- male or female -- of adultery can subject the communicator to liability for defamation, especially in states where adultery is still illegal. If the gossip is at a supervisory level or above, the employer could be vicariously liable.

In the DeJong case, the plaintiff claimed that he had reported job-related misconduct by his female supervisor. After he did so, he said that she started false rumors that he was a womanizer and was having an affair with a female co-worker. The boss allegedly believed the rumors, and even stopped Mr. DeJong and the female co-worker, who were innocently driving home together after a business meeting, and made them ride separately.

Rule 12(b)(6) caution

But the court's refusal to dismiss the lawsuit does not necessarily mean that Mr. DeJong will win. The court was deciding only whether his case should be thrown out at the get-go -- for failure to state a claim for which relief could be granted. At that very early stage of the litigation, the court was required to assume that everything Mr. DeJong said was true. And, all the court did was say that if Mr. DeJong's story was true -- which has yet to be proven -- then he should have a valid claim for sexual harassment under the WLAD.

Now that the lawsuit will go forward, the Great Wolf Lodge will file an answer, and the parties will begin to develop the evidence. It could turn out that nobody was gossiping about Mr. DeJong. Or it could turn out that Mr. DeJong really was a womanizer and really was having an affair with his co-worker. In either case, he will eventually lose. On the other hand, it could turn out that everything Mr. DeJong has claimed is true, in which case the Lodge is in trouble.

"Spider sense" is tingling

Now, here is why I suspect that the Lodge may eventually win. The allegations in the lawsuit are strange. Mr. DeJong recites his entire employment history, including a General Discharge Under Honorable Conditions from the military. Most bizarrely, he goes into detail about his "wrongful termination" from a job with a different employer, even though the former employer called it a reduction in force. Why he got off on these not-completely-flattering details about himself when they were irrelevant to his claims against the Lodge is beyond me.

Then, when he alleges what got him in trouble with the Lodge, his story doesn't make sense. He says he reported his supervisor for writing on a wall and partially destroying it. He even includes a picture of the torn-up, marked-up wall. But I can't imagine a supervisor writing graffiti on and then destroying a wall at a Lodge that she works for unless the wall was going to be torn down anyway. If it was going to be torn down anyway, it shouldn't be a big deal that she chose to write something on it or pulled off some chunks of drywall.

Here's a copy of the lawsuit. See whether you agree with me.

In any event, I do think that the DeJong decision, coupled with the Fourth Circuit decision, means that employers will have to be much more careful about monitoring and stopping workplace gossip about employees' sexual behavior. In fact, I plan to cover that in my next harassment training class!