Sexual Harassment – Court Finds “Pervasiveness” Where Harasser Previously Engaged in Similar Conduct

To satisfy the “severe or pervasive” element of a hostile work environment, a Plaintiff must establish that her workplace was “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Severity and pervasiveness “are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the work place only if it is pervasive.” Jensen v. Potter, 435 F.3d 444, 449 n.3 (3d Cir. 2006) (citations omitted) (overruled in part on other grounds by Burlington N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006)). In Fox v. Premier Immediate Medical Care, LLC, (no. 10-4516), 2012 U.S. Dist. LEXIS 172064 (December 3, 2012) (Goldberg, J.), the Court found that in order to meet the pervasive prong in a sexual harassment case a Plaintiff may rely upon a showing of similar conduct towards another employee. In Fox the Court relied upon a prior Eastern District case concluding that “Incidents involving employees other than [a] plaintiff are also relevant in establishing a generally hostile work environment [,]” provided plaintiff was “aware of the incidents during . . . her term of employment, and that, under the circumstances of the case, there is a nexus between the discrimination directed at him or her, and that directed at others.” Velez v. QVC, 227 F. Supp. 2d 384, 410 (E.D. Pa. 2002). This led the Court to conclude that the pervasive requirement was met even though Plaintiff only experienced inappropriate comments and touching over a 3 day period, where Plaintiff learned on the first day she worked with the harasser that he had recently engaged in very similar behavior with another employee.

For more information on Sexual Harassment Claims and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126492.html.

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Filed under Employment Law, Sexual Harassment

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