Kentucky Employment Law Blog

Doctor Subjected to Sexual Harassment and Hostile Work Environment by Clinic Owner, Fourth Circuit Rules

A doctor employed at a medical clinic could show that she was subjected to sexual harassment and hostile work environment, the Fourth Circuit Court of Appeals recently ruled in EEOC v. Fairbrook Medical Clinic, No. 09-1610 (June 18, 2010).  Characterizing the facts as indicating "a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment," the court reversed a summary judgment and remanded the case for trial.

The case highlights and illustrates a number of common arguments raised by employers in sexual harassment cases including the following:

• The clinic claimed that there was no discrimination based on sex because the doctor owner "was a generally crude person who made vulgar comments to men and women alike." The court rejected this argument and noted that "the use of "sex-specific and derogatory terms" indicates intent to demean and discriminate against women."

 

• The clinic had a relaxed and at times crude work environment in which employees including plaintiff made off-color jokes and this precludes any finding of a hostile work environment. The court rejected this argument stating that "there is a difference between "generalized" statements that pollute the work environment and "personal gender-based remarks" that single out individuals for ridicule."

 

• The doctor cannot claim that a hostile work environment existed because she occasionally made off-color remarks herself. The court answered: "a plaintiff's claim is not defeated solely because she engages in some crude behavior. ... Plaintiff's use of foul language or sexual innuendo in a consensual setting does not waive her legal protections against unwelcome harassment."

 

• There was no hostile work environment because the doctor did not have to miss any work and her job performance was not impaired.The court answered: "The fact that a plaintiff continued to work under difficult circumstances is to her credit, not the harasser's. ... The critical inquiry is not whether work has been impaired, but whether working conditions have been discriminatorily altered."
  
  Robert L. Abell
  www.RobertAbellLaw.com

Nashville Retaliation Victim Wins $1.5 Million Verdict

Vicky Crawford, a former 30 year employee of the Nashville Metrol schools, whom the Supreme Court ruled last year could pursue her retaliation suit after being fired because she disclosed prior instances of sexual harassment during an investigation, won a $1.5 million verdict from a federal jury on Monday reports The Tennessean, "Nashville Schools Employee Who Was Fired Is Awarded $1.5 Million." 

The Supreme Court's decision was discussed in a post last year:  "Retaliation Protections Applicable to Employee Providing Information In Internal Investigation."

Robert L. Abell
www.RobertAbellLaw.com

Sexual Harassment Liability: Purposeful Ignorance Is Not Reasonable Care

Sexual harassment liability for an employer requires that the employer either knew or, in the exercise of reasonable care, should have known about the harassment and failed to take remedial action.  In Duch v. Jakubek, No 07-3503 (decided December 4, 2009), the Second Circuit decided a case where a supervisor attempted to remain purposefully ignorant of sexual harassment occurring in the workplace.

Duch was sexually harassed by a co-worker, Kohn, including sexual advances involving physical contact, sexually graphic language.  The matter came to the attention of their supervisor, Jakubek, who told Kohn to "cut it out, grow up" asked Duch what had happened between the two. When Duch responded, "I can't talk about it," Kohn replied, "That's good because I don't want to know what happened." Duch later sued for sexual harassment. 

The employer defended that Duch had not reported the sexual harassment, although it had offered a reasonable avenue of complaint.  The Second Circuit agreed that it had offered a reasonable avenue of complaint but, nonetheless, could be held liable based on the Jakubek's efforts to avoid learning the nature of the issue between Duch and Kohn stating as follows:

when an employee's complaint raises the specter of sexual harassment, a supervisor's purposeful ignorance of the nature of the problem -- as Jakubek is alleged to have displayed -- will not shield an employer from liability under Title VII. 

The court then turned to whether the company had acted promptly to remediate the situation and ruled that it was spurred to action three months after Jakubek first learned of the harassment, which a jury could find too slow.

Robert L. Abell
www.RobertAbellLaw.com

Racial and Sexual Harassment Results in $1 Million Plus Judgment Against Whirlpool

Racial and sexual harassment creating a hostile work environment has resulted in a $1 million plus judgment against Whirlpool Corporation.  Federal district judge John T. Nixon found that a hostile work environment was created based on the following:

Baker frequently directed songs and explicit commentary at Freeman. While isolated
episodes of teasing or sexual comments do not rise to the level of a hostile work environment,
the Court finds that Baker harassed Freeman on an almost daily basis, both during breaks and
while he worked in close proximity to her on the Line. As the months wore on, Baker’s
harassment became more and more threatening, as he began mumbling and pointing at Freeman and eventually assaulted her.

Whirlpool's argument that the conduct was not sex-based and therefore not illegal sex discrimination:

Non-sexually explicit harassing behavior that is “directed at women and
motivated by discriminatory animus against women satisfies the ‘based on sex’ requirement.”Id. Multiple witnesses describe Baker as mumbling and staring at Freeman and her co-worker Chinica Lillard, also African-American, preceding the assault. After punching Freeman, Baker verbally threatened Lillard as well and threw a pipe at her. The Court finds that the assault was the final harassing act in a campaign of harassment that Baker targeted at Freeman because of her sex. Any reasonable person would find Freeman’s working environment to be hostile and abusive.

The Court entered a judgment in excess of $1 million in Freeman's favor.  You can read a copy of the Court's opinion, Freeman v. Whirlpool Corporation.

Robert L. Abell
www.RobertAbellLaw.com

When Does Sexual Harassment Become Unlawful?

To rise to the level of an unlawful hostile work environment based on sex the gender-based harassment must be severe or pervasive.  The Fourth Circuit Court of Appeals in EEOC v. Central Wholesalers, No 08-1181 (July 24, 2009), recently described a hostile work environment where it could be found that the sexual harassment was severe or pervasive:

"We conclude that a reasonable jury could find that the gender-based harassment was objectively severe or pervasive.  The evidence shows that Mike, Tony, and Green all regularly referred to women as b***hes.  Moreover, DaBay called Medley a b***h a number of times during the November 10 incident.  In addition, Mike -- whose cubicle was right next to Medley's -- had a Playboy calendar on his desk, kept Playboy magazines in his cubicle, hung a Playboy poster on his wall, watched pornography on his computer in Medley's presence, used a pornographic screensaver depicting partially naked women, and placed the screwdriver in the Halloween decoration in a sexual manner more than once.  This evidence is certainly sufficient to create a triable issue on whether the gender-based harassment was objectively severe or pervasive."

Robert L. Abell
www.RobertAbellLaw.com