While the viability of a claim of “constructive demotion” under Title VII of the Civil Rights Act of 1964 (Title VII) has yet to be determined by the Fourth Circuit, a series of cases in district courts within the Circuit suggest that such might not be the case for long. In one such recent case, Judge Conrad of the U.S. District Court for the Western District of Virginia denied a defendant truck driver training company’s motion to dismiss a constructive demotion claim brought by a female instructor. Diana Salmons, the plaintiff in Salmons v. Commercial Driver Services, Inc., Case No. 7:19-cv-00532, claimed she was subjected to a pervasive pattern of sexual harassment at the hands of her male counterparts and, as a result, she brought a five-count complaint alleging sexual harassment, hostile work environment, discriminatory and retaliatory constructive demotion and constructive discharge, and sex-based wage discrimination, in violation of Title VII. Employers should be aware of the increased number of constructive demotion cases and the courts’ rulings on these matters, as well as conduct regular sexual harassment training to prevent this sort of behavior from occurring in the workplace.

Defendant Commercial Driver Services, Inc. (CDS) moved to dismiss Ms. Salmons’ claims for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court, taking Ms. Salmons’ allegations as true for purposes of the Rule 12(b)(6) motion, observed that she had sufficiently alleged multiple incidents of lewd and lascivious comments made by male instructors, as well sexually aggressive behavior, sometimes involving unwanted touching. Ms. Salmons alleged that the behavior was designed to undermine her and was driven by the male co-workers’ resentment at having to work under a female supervisor. When she complained to CDS management about the harassment and aggressive behavior, Ms. Salmons alleged that she was told to “stop pouting and put your big boy panties on” and that she shared the blame for what occurred. The pressure of the alleged ongoing harassment and CDS’ complete failure to address it led to Ms. Salmons stepping down from her job as lead instructor. Her subsequent request to CDS to be reinstated as lead instructor was denied. The situation further deteriorated to the point where she feared for her safety and Ms. Salmons eventually resigned.

In denying CDS’ motion to dismiss, Judge Conrad concluded that Ms. Salmons had more than adequately alleged sufficient facts to describe CDS as a workplace “rife with pervasive and severe sexual harassment.” The Court noted that Ms. Salmons had plausibly alleged that she was constructively discharged and demoted. Judge Conrad found that Ms. Salmons’ allegations “describe a complete failure by CDS to respond to Salmons’ complaints of harassment” and that “[h]er additional complaints led to further allegedly worsened conditions at CDS. These allegations further support the inference that CDS intended to force Salmons out.” Particularly with regard to the claims of discriminatory and retaliatory constructive demotion, the Court noted that “the U.S. Court of Appeals for the Fourth Circuit has not yet squarely addressed whether a claim for constructive demotion should be recognized under Title VII,” however, such a claim had been recognized by the 5th, 6th, 7th and Federal Circuits, as well as other district courts within the Fourth Circuit. Accordingly, Judge Conrad decided that “[t]his court will follow suit and recognize constructive demotion as a claim under Title VII.”

The Salmons case is the latest in a series of cases within the Fourth Circuit wherein district court judges have expanded the reach of Title VII to include the claim of constructive demotion.[1]  Accordingly, it seems safe to assume that it is only a matter of time until the Fourth Circuit squarely addresses the issue on appeal, and decides whether to become the fifth U.S. Circuit Court to include constructive demotion as a claim that may be brought under Title VII.

For more information on this topic, please contact a member of PilieroMazza’s Litigation & Dispute Resolution or Labor & Employment practice groups. Additionally, attorneys in the Labor & Employment Group offer sexual harassment training, which can be tailored to meet your company’s specific needs.

Paul Mengel, the author of this blog, is Counsel in the Firm’s Litigation & Dispute Resolution Group.

[1] See, e.g., Petrovsky v. United States Attorney Gen., Dep’’t of Justice-Bureau of Prisons, No. 1:16-CV-44, 2018 WL 1937070, at *8 (N.D. W. Va. Apr. 24, 2018); Gray v. Walmart Stores, Inc., No. 7:10-CV-171, 2011 WL 1831780, at *5 (E.D.N.C. May 12, 2011); Cuffee v. Tidewater Cmty. Coll., 409 F. Supp. 2d 709, 718 (E.D. Va.), aff’d, 194 F. App’x 127 (4th Cir. 2006); Bryan v. Lucent Techs., Inc., 307 F. Supp. 2d 726, 738 (D. Md. 2004).