Nude Sunbathing at Work Not Recommended in Employment Discrimination Claims

  • Over 100 Years of Experience

    Our dedicated attorneys have a reputation for success.

    Meet Our Team
  • Our Awards Set Us Apart

    Learn about our distinguishing awards & how this benefits you.

    What It Means For You
  • Client Testimonials

    Many satisfied clients have used Schwartz Perry & Heller.

    What They Have to Say
  • Request Your Consultation

    Contact our firm today to learn how we can help you.

    Get Started Now

Nude Sunbathing at Work Not Recommended in Employment Discrimination Claims

If you are going to file a lawsuit against your employer for race discrimination under Title VII, you had better not be caught sunbathing in the nude on the roof of your workplace, especially if it's a school.

Charles Davis has been employed as a custodian with Unified School District No. 500 ("USD 500") in Topeka, Kansas since 1991. In 2007, he was found lying naked on his stomach, sunbathing on the roof of the elementary school where he worked. The school board considered a recommendation to terminate his employment. Instead, the Board decided upon a suspension without pay for thirty days and demoted him from his position as head custodian.

Over the next five years, Davis applied for seven different head custodian jobs with the district. Each job went to a different applicant. Davis filed three different charges with the EEOC stemming from those rejections, first for race discrimination, and later for retaliation.

The District Court threw out his lawsuit, finding that no reasonable jury could conclude that he was a victim of either discrimination or retaliation. On appeal, he lost again. The court concluded that since seven independent and informed decision makers for the school district had reviewed his application and turned him down, there was no evidence of that there was a common purpose to retaliate.

Davis must make a prima facie case of but-for causation with respect to each discrete incident of being passed over for a promotion. In the alternative, he would need to show a conspiracy among the disparate actors amounting to a common retaliatory motive. He has done neither. The principals of each of those schools independently investigated the applicants and made the hiring decisions. There is no evidence of concerted activity among them or with the HR department. In fact, there is no evidence of any principal's knowledge of Davis' protected activity and we see no reason to impute the HR Department's knowledge to any of them.

What happened here is that he failed to get promoted because of the nude sunbathing incident, which each decision maker independently concluded was sufficient to make him ineligible for a promotion. With regard to his retaliation claim, there was no causal connection between his filing charges for race discrimination and his failure to be promoted.

The takeaway? If you are going to sue your employer for discrimination and/or retaliation, you will be much more likely to succeed if you have an impeccable employment record. Otherwise, you will have given your employer ammunition to prove that there was a non-discriminatory reason for its action.


No Comments Posted

Contact Us

Schwartz Perry & Heller LLP
New York Employment Law Attorney
Located at: 3 Park Ave.,
27th Floor,

New York, NY 10016
View Map
Phone: (646) 490-0221
Local Phone: (212) 889-6565
© 2018 All Rights Reserved.


The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.