Wednesday Federal Employment Law Update- Sexual Harassment

Hello all, and welcome back for your employment law update.  For those of you who have been waiting patiently, we finally have a sexual harassment case to report on.  One of the underrated perks of this blog is locating the appropriate photos for my posts through Google image search.  Some days, like when the case is about a homeowners’ association, are less fun than today was.  This photo of a creepy guy putting his shoulder on the twin sister of Chloe from 24 was an instant winner. 

The little known fact about sexual harassment cases under Title VII and its state law counterparts, Plaintiffs have quite a steep hill to climb in order to make a case.  A female plaintiff must show that 1) she was subjected to verbal or physical conduct of a sexual nature; 2) the conduct was unwelcome; and 3) the conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.  The “severe or pervasive” element is always where the rubber meets the road in these cases. Pursuant to the U.S. Supreme Court case of Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), “[i]n evaluating the objective hostility of a work environment, the factors to be considered include the frequency of discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”  Also, “the required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.” 

So, with that backdrop, we turn to today’s case of Kendall v. Nevada, 2011 WL 1979599 (9th Cir. May 23, 2o11).  In Kendall, the Ninth Circuit reversed the trial court’s summary judgment finding for the employer.  In case you don’t know, all this means is that the employer should not have won as a matter of law prior to trial.  Rather, the case was compelling enough to send to the jury. 

As an example of how difficult it is to prevail on a sexual harassment in the workplace case, here are the facts that the trial court did not even believe should have gotten to the jury:

Plaintiff, a commander of teh Nevada Department of Public Safety Training Academy, withstood the following statements from a male subordinate:

“Go sit in your office and look pretty and do what you need to do as a woman” (whatever that means). 

-In front of other officers, the same subordinate responded to her direct order by saying that he may or may not follow the order, and that he would get her what he thought she should have

Plaintiff further withstood daily diatribes from her male supervisor, who would complain to her about his female supervisor, a mentor to Plaintiff, with comments directed at the supervisor such as “fu**ing c*nt,” “fu**ing bit*h.

Plaintiff’s supervisor also confided about his marital problems, including his alleged weekly need to go to Las Vegas for a “b***job.” 

Now, of course we could all imagine a more compelling set of facts than these.  There was no evidence of any unwanted sexual advances or touching directed toward the plaintiff, as you see in the most severe harassment cases.  However, the fact that the trial court did not even send this case to the jury is a testament to how difficult these cases are to win for a plaintiff. 



THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction.
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