Being Required to Hire Female Escorts Is Not Actually a Title VII Violation
By Alexander Castelli - Shawe Rosenthal LLP
May 1, 2019
I found a recent case to be a peculiar example of how Title VII is not a “general civility code” in the workplace. In Butto v. CJKant Resource Group, LLC, a male executive was terminated after complaining about being required to arrange female escorts for his married supervisor and perform other activities to facilitate his supervisor’s infidelity. It seems like a reasonable complaint, right? But does that mean it was protected under Title VII?
Specifically, the supervisor ordered the executive to accompany him to strip clubs, search for women on the internet, set up an online dating profile for him, and meet escorts while on business trips. (!!!!) The executive claimed that these duties fell outside the scope of his job title of CFO (!!!!), and that his supervisor neither expected nor required similarly-situated female employees to be complicit in such conduct. Unsurprisingly, these duties made the executive feel “extremely uncomfortable.” When he complained to his supervisor, the supervisor fired him on the spot. He ended up suing for gender discrimination, a hostile work environment and retaliation for complaining about this sexual activity.
The court, however, found no violation of Title VII, despite all the lascivious activity. As to the gender discrimination claim, there was no allegation that any gender-related comments were made by the supervisor, and none of the female executives could be compared to the executive because they were not similarly situated to the male executive – they had different job titles and worked in different areas. Thus, the executive’s claim that he was being treated differently from female employees because of his gender failed. In addition, although the court noted that the supervisor’s conduct “is not to be admired nor is it to be encouraged,” it further found that it was not physically or verbally threatening, intimidating, or abusive enough to support a hostile work environment claim.
Finally, the executive did not make any reference to discrimination, retaliation, or any other Title VII-protected activity when he complained to his supervisor, and thus, he could not bring a claim that he was retaliated against for engaging in such activity. Importantly, the executive’s complaint did not suggest that the supervisor’s actions were in any way based on the executive’s gender.
While this case, of course, does not approve of the supervisor’s conduct, it shows that general complaints of unfair or inappropriate treatment do not necessarily translate into a claim of illegal discrimination. And just because complaints involve sexual activity does not mean that they are “based on sex,” as required by Title VII.