To state an actionable claim under Title VII for harassment, an employee must be able to show that the alleged offender’s conduct is based on a protected classification, such as gender. Employers often successfully respond to harassment claims with evidence that the alleged offender did not single out an employee based on a protected class, but was instead an equal opportunity offender who treated everyone equally badly. A recent decision from the United States Court of Appeals for the Fourth Circuit, which is the Federal Circuit in which North Carolina is located, has placed a limit on the reach of this defense in a case where the conduct of such an equal opportunity offender focused on the gender of an employee.

In Equal Employment Opportunity Employment Commission v. Fairbrook Medical Clinic, the EEOC brought suit on behalf of a female physician formerly employed by the Clinic. The Commission presented evidence that the owner of the Clinic, who was the former employee’s supervisor, made harassing comments to the employee physician concerning her anatomy, sex life, breastfeeding her child, along with making other references to women using derogatory slurs and demeaning descriptions. The employee physician informed her supervisor on a number of occasions that his choice of language and comments were offensive and unwelcomed. Ultimately, the employee resigned her position.