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LABOR & EMPLOYMENT LAW — 06/17/09

Sexually hostile work environment claims revived

A female employee presented sufficient evidence for her sexually hostile work environment claims under Title VII and the Ohio Fair Employment Practices Law to survive summary judgment, ruled the Sixth Circuit Court of Appeals, reversing a district court’s conclusion otherwise. The employee alleged her mostly male coworkers referred to females as “bitches,” “whores,” and worse, viewed sexually explicit pictures on their computers, and left pornographic magazines lying open on their desks. The district court held this conduct was insufficient to support a finding of harassment based on sex because it was “indiscriminate” and did not occur because the employee was a woman. (Gallagher v CH Robinson Worldwide, Inc, 6thCir, 92 EPD ¶43,570).

The Sixth Circuit disagreed. Analyzing the Title VII and state claims under the same standard, the offensive conduct, both directed at the employee and indiscriminate, was sufficient to support a finding of harassment based on sex because it was sexually explicit and patently degrading of women, and thus, women exposed to it would suffer greater disadvantage in the terms and conditions of their employment than men. In light of the conduct shown, “it is hardly necessary for [the employee] to otherwise show that the conduct evinces anti-female animus; it is obvious,” the appeals court wrote, noting the lower court “focused too narrowly on the motivation for the harassers’ offensive conduct rather than on the effects of the conduct on the victim-recipient.”

The district court also erred in finding that the employee failed to show the harassment she endured was not so severe and pervasive as to interfere with her job performance. While not all of the harassing conduct was directed to her, due to the workplace configuration, the employee had no means of escaping her coworkers’ loud, insulting remarks and degrading discussions. The employee’s complaints to her coworkers and branch manager were ignored and made matters even worse. A reasonable person would have found the environment objectively hostile. The employee was not required to show her performance was measurably worse, only that the harassment made it more difficult to do her job, the appeals court noted.

The Sixth Circuit also rejected the district court’s conclusion that her employer could not be held liable for the harassment because the employee failed to take advantage of the routes available to report the harassment to upper management, reporting it only to her direct supervisor, whom she acknowledged could not handle the situation. The employee’s claim was for both coworker and supervisor harassment. Her failure to report the harassment to anyone other than her branch manager, who was her direct supervisor, may have precluded her claim as to supervisor harassment. But, her complaints to her branch manager, who was expressly designated to receive such complaints by her employer’s policy, together with his witnessing and participating at times in the harassment, were sufficient to impute liability to her employer. A reasonable jury could find her employer, through its branch manager, knew or should have known of the sexual harassment she experienced but acted with manifest indifference or unreasonably failed to act, said the court.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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