SEXUAL HARASSMENT IN THE WORKPLACE Part 4: Hostile Work Environments — How Severe or Pervasive?
This is the fourth entry in a 5-part series about workplace sexual harassment, the Federal and State laws against such conduct, and what you can do if you are or become a victim of harassment. Today’s entry will examine specific cases that have dealt with the form of sexual harassment known as the Hostile Work Environment and the facts that courts have held to be evidence of harassment in this form.
After our overview of the legal concepts of sexual harassment in Parts 1 through 3 of this series, you should have an understanding of what goes into a sexual harassment claim, and what issues courts look to when resolving such claims. Today, we’re going to see how the sexual harassment claim functions in practice, not just theory. The best way to get this sort of insight is through an examination of actual cases that have been heard by courts.
The cases that we’ll feature today deal with “hostile work environments.” The hostile work environment, as you’ll recall from Part 1, is one of two types of sexual harassment actionable under Title VII of the Civil Rights Act and KRS 344.040 of the Kentucky Civil Rights Act. This type of harassment occurs when co-workers or supervisors engage in unwelcome, inappropriate sexually-charged behavior that makes the atmosphere of your workplace intimidating, hostile, or offensive.
Severe or Pervasive?
As we discussed in Part 2, one of the elements of a hostile work environment claim is whether the harassing conduct was “sufficiently severe or pervasive to affect the terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.” Courts have interpreted this element to usually require continuous harassment, to such an extent that it actually interferes with a victim’s job. This is often one of, if not the most, contested issues in a sexual harassment suit.
How many instances of harassment must there be for conduct to qualify as a hostile work environment? The answer is: it depends. More often than not, a court will want to see a examples of harassment occurring frequently over the course of employment.
The Hostile Work Environment of Temple v. Pflugner
The case of Temple v. Pflugner, serves as a good example of the type of conduct courts view as severe or pervasive.1 In Temple, the plaintiff, a Lexington woman, was hired as a sales associate for a company selling medical devices. Although only employed at the company for four months, the female sales associate alleged that she suffered from constant harassment at the hands of her supervising sales representative.
According to the plaintiff’s testimony, her supervisor’s harassing conduct manifested itself in a number of ways. Often times, he would make sexually-charged comments about the plaintiff’s body. He “advised” her that sex sells, instructed her to wear tighter clothing, and even went so far as to suggest she sleep with a client to expand an account. At one point he stated that he would fire the plaintiff if she ever gained weight or cut her hair. And to top off all of the above behavior, the supervisor would daily ask why the plaintiff would not have sex with him.
After the plaintiff reported these issues to her supervisor’s manager and requested a transfer, the harassment became even more oppressive. Upon hearing of the plaintiff’s complaint, her supervisor threatened her physically, and even damaged her car with a medical instrument.
The Court’s Decision
The Eastern District of Kentucky, the court in which this claim was brought, heard this case on a summary judgment motion. A summary judgment motion is a preliminary motion in which one of the parties to the suit asks the court to rule on the case without it going to trial. In Temple, the Court needed to determine whether the plaintiff’s allegations contained the information necessary for a sexual harassment claim to be made, and whether a jury could find for the plaintiff based on her allegations alone.
After reviewing the pleadings, the Court found that the plaintiff’s allegations were more than enough to make out a hostile work environment claim. It cited the frequency of the supervisor’s conduct (“constantly,” “daily,” and “weekly”) as evidence that a jury could find the harassment pervasive, and found that supervisor’s violent behavior, as well as the sexual content of his statements, could be considered severe.
The Court further supported its decision by providing examples of when harassment isn’t severe or pervasive. It pointed to Bowman v. Shawnee State University 2 and Black v. Zaring Homes3 as cases with facts distinct from those found in Temple. In Bowman, five instances of harassment were recorded over a five year period. Spread out over such a long period of time, the Bowman court found that these five events were not enough to qualify as “severe or pervasive” for the purposes of a hostile work environment claim.
Similarly, the court in Black found that harassing comments made at bi-monthly meetings were also not “severe or pervasive.” The Temple court found these facts to be at odds with those the plaintiff had alleged, stating that her supervisor’s conduct occurred much more regularly than the instances of harassment found in those cases.4
So as you can see, the frequency of harassment can play a big role in a court’s analysis of a hostile work environment claim. However, frequency is not always the deciding factor. In some cases, even if harassment occurs in isolated episodes, single events may be so severe and pervasive that it tips the scales, leading courts to find that a hostile work environment has been created.
Physical Assault, Offensive Touching, and the Case of Custom Tool and Mfg. Co. v. Fuller.
Many courts have found that single instances of physical assault or touching have created hostile work environments.5 The Court in Custom Tool and Mfg. Co. v. Fuller recognized this proposition explicitly when they upheld the jury’s finding that a hostile work environment had been created by the actions of the owner of the defendant company.
In Fuller, the plaintiff worked as the plant manager of the defendant company, directly under the owner. The plaintiff recounted at trial a number of instances spread out over the course of her employment in which the owner made sexual, inappropriate comments to her, but testified she was most affected by one particular event. One evening after closing the plant, the owner requested that the plaintiff come to his office. In his office, the owner showed the plaintiff a pornographic video, made sexually suggestive comments and gestures to the plaintiff, and physically restrained her when she attempted to leave.
After acknowledging that other instances of harassment had indeed occurred in the past, the Court emphasized this last event over the others, stating that it could only be characterized as a “serious” or “severe” episode. Maintaining the focus on this last incident, the Court affirmed the finding of the jury that the owner’s conduct created a hostile work environment for the plaintiff, and upheld the award for damages the jury had provided for her in its verdict.
Coming up next week…
In our next article, we’ll continue to examine case law that features sexual harassment claims, focusing on the other type of sexual harassment: quid pro quo harassment claims. As always, if you feel that you’ve been a victim of sexual harassment, the attorneys at Abney Law Office are here to assist you. Whether you’ve experienced one incident or have endured many, we can examine your options and figure out a path forward. Contact us today for more information.
1) Temple v. Pflugner, 866 F.Supp.2d 735 (E.D.Ky 2011).
2) Bowman v. Shawnee State University, 220 F.3d 456 (6th Cir. 2000).
3) Black v. Zaring Homes,104 F.3d 822 (6th Cir. 1998).
4) Some of you may be wondering if harassment occurring every two weeks (as inBlack) is really all that different than the frequently occurring conduct in Temple. It’s worth noting that the Temple court’s emphasis on the frequency of the harassment inBlack might be misplaced. The Black court’s decision rested more on the nature of the alleged harassment, rather than how often it occurred. The conduct in Black was characterized as “merely offensive” jokes that were not directed toward the plaintiff. This differs greatly from the type of harassment inflicted upon the victim in Temple.
5) See e.g., Todd v. Ortho Biotech, 138 F.3d 733, 736 (8th Cir. 1998) (attempted rape held sufficiently severe); Fall v. Indiana University Bd. of Trustees, 12 F.Supp.2d 870, 879 (N.D.Ind. 1998) (a single instance of groping may constitute a hostile work environment).