An employer which is presented with claims of repeated sexual harassment and fails to take action against the harassers exposes the employer to a significant sexual harassment claim. In Standen v. Gertrude Hawk Chocolates, Inc., 2014 U.S. Dist. LEXIS 20075 (M. D. Pa. February 19, 2014) (Munley, J.), the plaintiff, a female employee was employed at a candy factory. The sexual harassment became so severe that the employee took FMLA leave for and while out on FMLA leave, resigned from her position, alleging that prior to resigning for 6 years she had been the victim of sexual harassment, numerous unwelcome and unwanted physical touchings and was subjected to a severe and pervasive sexually hostile work environment by three male employees. The employee filed numerous complaints with her supervisors up to and including defendant’s Chief Executive Officer and also repeatedly registered verbal complaints of sexual harassment with the Human Resources Manager. The employee filed a sexual harassment hostile work environment claim pursuant to Title VII which as it relates to sex provides that it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s sex.
Title VII prohibits sexual harassment that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Hostile work environment claims require a plaintiff to establish five elements: (1) the discrimination was intentional and because of the plaintiff’s sex; (2) the discrimination against plaintiff was severe or pervasive; (3) the discrimination had a subjective detrimental effect on the plaintiff; (4) the discrimination was objectively detrimental; and (5) respondeat superior liability (which determines if the employer is liable for the actions of employees). To satisfy the intentional discrimination because of sex requirement, an employee must demonstrate that sex was a substantial factor in the alleged harassment and that if she were a male, she would not have been treated in the same manner. In Standen, the employee met this requirement by testifying that her co-workers subjected her to a barrage of sexually charged comments, innuendos, propositions and gestures including sexually graphic comments; grabbing the employee around her neck, choking her, and saying “I know you like it rough”; summoning the employee into an office and stating, “Hey! we got your Christmas present!” whereby a coworker held up a vibrating tool and thrust it towards Standen’s genitals; and routinely coming up from behind the employee to lean in and smell her in a sexual fashion while the coworker pushed his groin into her; and demanding the employee walk ahead to admire her physique while making sexually suggestive remarks pertaining to her buttocks.
To determine if harassment is severe and pervasive, the totality of the circumstances must be examined, including the frequency of the 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.” In Standen, the Court found that these incidents occurring over a 6 year period involved similar conduct by the same individuals suggesting a persistent, ongoing pattern which a reasonable jury could conclude that the discrimination was severe or pervasive. While psychological harm is not required, effect on the employee’s psychological well-being is relevant. In Standen, the employee met this burden by testifying that she was actively treating for depression and anxiety, that she attempted to take her own life and showing that the atmosphere in defendant’s factory was that of a “boy’s club,” and the men in the shop were untouchable.
The final hostile work environment element is respondeat superior liability which requires evidence that the defendant knew or should have known of the harassment and failed to take prompt remedial action. Thus, if a plaintiff employee proves that management-level employees had actual or constructive knowledge about the existence of a sexually hostile environment and failed to take prompt and adequate remedial action, the employer will be liable. In Standen, the employee easily met this requirement by showing that she complained to management about the sexually harassing behavior.
Standen also shows that arguments by employers that employees wait too long to file sexual harassment claims that occur over a substantial period of time can be overcome by the continuing violation doctrine, which provides discriminatory acts that are not individually actionable may be aggregated to make out a hostile work environment claim if at least one act occurred within the requisite filing period (180 days under Pennsylvania law and 300 days under federal law) and that the harassment is more than the occurrence of isolated or sporadic acts of intentional discrimination; stated differently, a court must determine if the violations constitute the same type of discrimination and that at least one act falls within the applicable limitations period.
For more information on sexual harassment and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2130161.html.