In Employment Law And Immigration

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Real Alabama Case Demonstrating what Fails the “Severe or Pervasive” Sexual Harassment Lawsuit Test

Real Alabama Case Demonstrating what Fails the “Severe or Pervasive” Sexual Harassment Lawsuit Test

I often speak with clients wishing to file a sexual harassment or race discrimination lawsuit. Many times these would-be clients have been traumatized or, at the least, severely embarrassed by the conduct they’ve been subjected to in the workplace. Often that conduct, however, is not sufficiently “severe or pervasive” to support a lawsuit for sexual harassment or race discrimination against the employer based on Title VII of the Civil Rights Act of 1964. Understandably, that’s hard for many to hear, because it’s certainly severe and pervasive conduct in their eyes. To help people better understand how tough the standard can be, I’ve briefly summarized a real world case below.

In Leslie v. Cumulus, Media, Inc., 814 F. Supp. 2d 1326 (S.D. Ala. 2011), the victim could not present sufficient evidence of sexual harassment to survive the defense’s motion for partial summary judgment. In other words, the plaintiff could not even get her claim before a jury!

Here’s the evidence that fell short of the “severe or pervasive” test: (1) the “sexual harasser” sent the plaintiff an unsolicited photo via text message of his genitals; (2) numerous sexually-charged comments that the court called “isolated” incidents; (3) instructions from a co-worker that the plaintiff have sexual intercourse before returning to work following a weekend; (4) accusations that she was homosexual because she refused to date a co-worker; (5) being told that if she saw male genitals she “wouldn’t know what to do with it”; and (6) jokes/phrases mentioning male genitalia. As you can imagine, this is a very censored version of what was really said and done.

As any victim of this kind of treatment should, the plaintiff complained to a manager. A manager apparently shrugged it off, saying “you know how they are,” referring to the plaintiff’s co-workers. The photo text eventually received the attention it deserved from higher level management. The harasser resigned, but not before the damage was done.

The court found the victim’s sexual harassment evidence insufficient to reach the jury. It rested its conclusion on the “severe or pervasive” prong of the legal test for a sexual harassment claim.

To establish a case of hostile work environment–sexual harassment, the plaintiff had to present evidence that (1) she belonged to a protected group; (2) she had been subjected to unwelcome sexual harassment; (3) such harassment was based on a protected characteristic (i.e., sex) of the employee; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) the employer’s responsibility for the sexual harassment environment.

The Court assumed away the other elements and focused on the fourth – whether the plaintiff had presented sufficient evidence supporting her claim that the conduct was severe or pervasive. The evidence must be such that a “hypothetical reasonable person” would view it as severe or pervasive. To determine that, the court considered: (1) the frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether the conduct was physically threatening or humiliating, rather than a “mere offensive utterance”; and (4) whether the conduct unreasonably interfered with the plaintiff’s job performance.

Applying those legal standards to the evidence presented by the victim, the court, quoting other court opinions (quotations omitted), stated:

“In this case, [the plaintiff] has not submitted sufficient evidence from which a reasonable jury could find that the alleged sexual harassment was frequent, severe, physically threatening, humiliating, demeaning and/or unreasonably interfered with her job. A few isolated offhand or offensive comments do not constitute actionable sexual harassment. Additionally, one instance of a co-worker sending a sexually explicit e-mail photograph does not arise to severe or pervasive. It is repeated incidents of harassment that continue despite the employee’s objections [that] are indicative of a hostile work environment. Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment. These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a general civility code. Properly applied, they will filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing. We have made it clear that conduct must be extreme. In sum, Title VII does not operate as a general ban on rude or offensive behavior.”

Indeed, the court found that, “[a]part from the single e-mail photograph . . . [the plaintiff’s] sexual harassment allegations [were], at best, unprofessional and/or sex talk.”

The plaintiff in the Leslie case was actually diagnosed with major depression, including difficulty sleeping, lack of interest in activities, reduced energy, daily spells of “weeping,” and poor concentration. Her conditions prevented her from performing her job functions altogether, according to some of the records. Yet, she had no remedy for sexual harassment. Indeed, a jury never heard the evidence.

Hard to believe based on the evidence, right? These cases are not easy to win.

Now, the purpose of this case summary is not to discourage victims of sexual harassment from seeking redress. If you feel that you’ve been subject to sexual harassment, you should always complain to a manager and speak with loved ones and/or professionals for support. After complaints are made, the harassment should stop! If that’s not the case, the victim would be wise to speak to an attorney.

No case is the same, and a knowledgeable attorney can educate a victim quickly regarding whether the harassment will pass the “severe or pervasive” test. And if that’s the case, a good attorney can hopefully get such a claim to the jury.

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