Category Archives: Sexual Harassment

Husband Proceeds with Sex Based Hostile Work Environment Claim Against Employer Based on Wife’s Actions

Many employers have policies that restrict two members of the same family, such as a husband and wife, from working together in order to avoid nepotism, a conflict of interest and other issues that could allow a family related dispute to cause an issue at the workplace. Other employers permit two family members to work at the employer if they are in a different department, or they do not supervise each other. A recent Pennsylvania federal court decision in Reiser v. Concordia Lutheran Health, W. D. Pa. no. 16-959 (December 8, 2016, Bissoon, J.) demonstrates that employers who do not have these types of workplace restrictions may be exposed to liability under laws which protect retaliatory action against employees, such as sexual harassment.

In Reiser, the husband was an employee who worked as a Corporate Director of Rehabilitation at a senior and healthcare services provider with several locations. The employee’s wife, the daughter of the Chief Executive Officer, was employed by the same employer as a manager. When the marital relationship ended, bad feelings erupted, causing substantial problems at the workplace.

The wife confronted her husband in his office and asked him to renew their relationship before their divorce was final; when he refused, the wife stated that she would make his life “a living hell.” The wife then engaged in a series of harassing actions at work, including sending text messages using vulgar terms; telling other employees that the husband was an inadequate lover and a poor father; requiring the husband to use a computer program at work to track his whereabouts and the time that he spent using his mobile phone, while no other salaried, management level employee was required to do the same; falsely alleging that the husband was repeatedly staring at her and not working; using the performance evaluation process to accuse the husband of poor work performance, even though the work performance allegations conflicted with the performance data provided by the other facility managers; and reporting the husband to the police for a violating a protection from abuse order and not advising the police that the husband was an employee required to work at the designated location that day, with the intent of causing difficulty at the workplace as it would be nearly impossible for him to perform his duties and comply with the restrictions. The husband complained to human resources about the wife’s conduct but the employer took no action to address the situation and have the wife cease her actions.

In Reiser, the husband filed litigation against the employer claiming that the employer subjected him to a hostile work environment because of his sex. The employer filed a Motion to Dismiss, arguing that the employee’s hostile work environment claim fails because the actions at issue were not motivated by sex, but rather were the result of a family law dispute.

In order to establish a prima facie of a sexually hostile work environment based on gender, an employee must show that the employee (1) suffered intentional discrimination because of sex; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected the employee; and (iv) the discrimination would negatively affect a reasonable person in the employer’s position. For the harassment to be actionable, the workplace must be permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive working environment.

In Reiser, the court denied the Motion to Dismiss and found that the husband alleged sufficient facts to support a sexually hostile work environment claim against the employer by showing that the wife’s actions were sufficiently severe and pervasive to have altered the terms and conditions of his employment, as the wife used her position as a management level employee and daughter of the employer’s Chief Executive Officer to harass the husband because of his refusal to renew their intimate relationship. As such, the court found that the husband sufficiently alleged that he was negatively impacted by the alleged harassment in the form of anxiety and depression and that the actions taken against him would negatively affect a reasonable person in the employee’s position.

Andrew Abramson is an experienced Pennsylvania employment law attorney who represents employees who have been subjected to sexual harassment and hostile work environments. Abramson Employment Law represents clients in Philadelphia, Montgomery County and surrounding areas. For more information on sexual harassment and retaliation see


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Sexual Harassment: Employer Liable for Ignoring Repeated Sexual Harassment Complaints by Employee

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.

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Sexual Harassment & Gender Discrimination: Failing to Conform to Gender Stereotypes Recognized as Viable Claim for Openly Gay Employee

While there are efforts before Congress to provide protection under federal law for employment discrimination based on sexual orientation, presently federal law does not explicitly provide protection for adverse employment decisions based on sexual orientation. However, a recent case, Roadcloud v. City of Phila., 2014 U.S. Dist. LEXIS 769 (E.D. Pa. January 6, 2014) (Tucker, J.), demonstrates that exiting federal law can provide certain protection in a sexual orientation context when the factual basis of an employee’s claim supports a finding that an employee fails to conform to gender stereotypes.

In Roadcloud, an openly gay female sergeant employed by the Philadelphia Prison System filed causes of action for discrimination on the basis of her gender, sexually harassment and creating a hostile work environment, alleging that she began to receive harassing comments from her supervisor which focused on plaintiff’s perceived lack of femininity, outward signs plaintiff had engaged in sexual contact, and plaintiff’s sexual orientation. The employee also outlined incidents which included the supervisor claiming that he noticed plaintiff had signs of recent sexual activity in the form of disheveled hair and a “passion mark” which the supervisor shared with plaintiff’s supervisors and co-workers; the supervisor indicated to plaintiff he was dissatisfied with a staffing decision and at the same time told the plaintiff that he was aware of plaintiff’s sexual preferences in a threatening manner. The Plaintiff then made a formal written complaint for which no action was taken; and then received a negative performance review; and eventually, a transfer to a less desirable prison facility.

In considering sexual harassment/hostile work environment claims, the court noted that a plaintiff employee must show (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 (the employer is responsible for the acts of the harassing employee). In so doing, a court must consider the totality of the circumstances, 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. While federal law does not consider sexual orientation a protected class, discrimination on the basis of a plaintiff’s failure to conform to expected gender stereotypes is discrimination on the basis of sex, which means that if a plaintiff employee can show that either the harasser was motivated by sexual desire, expressed a general hostility to the presence of one sex in the workplace, or acted to punish noncompliance with gender stereotypes, a claim is viable.

In Roadcloud, the court concluded that the Plaintiff employee sufficiently alleged discrimination against her on the basis of her failure to conform to expected gender stereotypes (i.e. a belief that women should not be aggressive), and the supervisor acted on the basis of gender because Plaintiff alleged the supervisor’s harassment focused on plaintiff’s appearance, specifically the signs of sexual conduct he believed plaintiff exhibited but he did not make similar comments about women that conformed to the supervisor’s expectations of a female. The court also found that the conduct was severe or pervasive because the Complaint demonstrates that for a period in excess of one year, the Plaintiff was harassed by the supervisor, which the court found alleges “complex tapestry” of actions by the employer sufficient to plausibly allege severe or pervasive discrimination.

The court also found that the employee has a separate viable gender discrimination claim because: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances of the adverse employment action could give rise to an inference of intentional discrimination. In so doing, the court found that Plaintiff alleged two adverse employment actions, her negative performance evaluations and a transfer to a different facility with poorer conditions, fewer responsibilities, and less hours.

For more information on sex discrimination, sexual orientation discrimination and Abramson Employment Law, see,

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Sexual Harassment and Retaliation: University May be Liable for Retaliation When Student Reports Sexual Harassment by a Professoria

There are occasions when employment discrimination and sexual harassment issues are found in cases where a plaintiff alleges discrimination or retaliation against educational institutions under Title IX. In Miller v. Kutztown University, 2013 U.S. Dist. LEXIS 173878 (December 11, 2013) (Stengel, J.), the court found that an educational institution can be liable for retaliation after a student complains that she is being sexually harassed by a university professor.

In Miller, the plaintiff, a former student alleges that a professor who served as her academic advisor at Kutztown University sexually harassed her. Plaintiff was an undergraduate honors student who was required to work closely with the professor and he was her instructor for much of her individualized coursework. The professor allegedly began to make uninvited and unwanted sexually offensive remarks and advances towards the plaintiff to which she objected but he continued his advances. On one occasion, the professor allegedly made several sexual comments about the plaintiff in the presence of his male colleagues. Additionally, during a meeting at his home, the professor allegedly groped and kissed the plaintiff without her consent and threatened to commit suicide if the plaintiff reported him and also threatened to sabotage her academic career if he did not give in to his sexual advances. The professor also allegedly frequently told the plaintiff she was “hot” and “sexy”, that “they were going to be lovers”, asked the plaintiff to have sex with him on several occasions and to stay at his home while his family was on vacation in order to “have sex.” Plaintiff also alleged that the professor sent her hundreds of unsolicited text messages, many of which included sexual remarks, told her he loved her, it was her fault and suggested they share a hotel room during field trips.

The plaintiff requested a new academic advisor because of the professor’s persistent sexual harassment and the severe emotional distress it caused. She also contacted Kutztown to inform the university of the professor’s sexual harassment and Plaintiff alleges that Kutztown failed to investigate the allegation and undertake remedial action. Thereafter, the plaintiff claims that the defendants “commenced a campaign of retaliation” against her by excluding her from a lecture series which she helped organize, preventing her from meeting with a visiting scholar, revoking certain library privileges, and excluding her from participating in events. As a result of the alleged retaliation, the plaintiff was forced to withdraw from her academic program and then registered another complaint with Kutztown about the professor’s behavior and the failure of Kutztown to investigate the previous complaint. Kutztown subsequently investigated her complaint and found that professor did, in fact, act “inappropriately.” Nonetheless, no disciplinary action against the professor was taken. Plaintiff further claims that the retaliation is ongoing because she has been deprived of opportunities for awards and scholarships, thereby adversely affecting her career opportunities. Kutztown also revoked the plaintiff’s invitation to a previously scheduled campus visit from the German Ambassador and the plaintiff was told by an emeritus professor of history that he would not assist her with her honors research project because he did not want to have anything to do with her since he “had been told [she] was in trouble with the University.” In addition, plaintiff received an email from an Associate Vice Provost, informing her that she was not permitted to participate in co-curricular activities.

The plaintiff filed a lawsuit claiming a violation of Title IX against Kutztown University for retaliation and claims against the professor for assault and battery and intentional infliction of emotional distress, seeking compensatory and punitive damages along with attorneys’ fees and costs. Kutztown filed a motion to dismiss the Plaintiff’s Amended Complaint where the only claim asserted against Kutztown is a Title IX retaliation claim. To state a prima facie case for retaliation under Title IX, the plaintiff must show that: 1) she engaged in a protected activity; 2) she experienced a materially adverse action after or contemporaneously with the protected activity; and 3) a causal link between the protected activity and the adverse action exists. The court found that the plaintiff had provided Kutztown of actual notice of the sexual harassment and because Kutztown and its agents retaliated against her after she made her complaint, there could be sufficient evidence of retaliation because she complained about sex discrimination, a form of intentional sex discrimination encompassed by Title IX’s private cause of action. The Court held that because plaintiff pled that members of the Kutztown faculty denied her access to academic assistance and resources related to her individualized course of study, only after she complained to staff at the university about professor’s sexual harassment, and as a result, she subsequently was forced to withdraw from her individualized course of study; the timing of these events and the remarks made by faculty, create a reasonable inference that the adverse actions taken against the plaintiff were causally related to her making a complaint against professor. Consequently, the court found that the there was sufficient evidence to make out a prima facie retaliation claim under Title IX.

While Miller does not involve sexual harassment of an employee, the case demonstrates a key issue that arises in sexual harassment cases. Just as with the educational institution in Miller, when an employee is being sexually harassed at work, it is critical that for an employer to ultimately be found liable, the employee must provide the employer with notice of the sexual harassment. Further, if as a result of reporting sexual harassment, the employee is retaliated against, an employee will have a separate cause of action for retaliation against the employer.

For more information on sexual harassment, retaliation and Abramson Employment Law see

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Sexual Harassment: Server Repeatedly Sexually Harassed at Restaurant Awarded $112,878.80

Sexual harassment at the workplace can result in significant damage awards. In Raker v. Bar-BQ Pit, Inc. 2013 U.S. Dist. LEXIS 167792 (E. D. Pa. November 25, 2013) (Stengel, J.), the Plaintiff employee worked as a full-time server for the defendant restaurant for 9 months. She was subjected to a hostile work environment throughout her employment due to the constant sexual harassment of the restaurant’s owner whose conduct included unwelcomed touching and kissing, notwithstanding her pleas for him to stop. The owner also made inappropriate comments about Plaintiff’s body on several occasions, and frequently asked Plaintiff to go on vacations with him with some kind of sexual encounter implicit in his invitations. On one occasion, the owner approached Plaintiff from behind, placed his hand under her shirt, and touched her breasts; on another occasion the owner placed his hand or her knee, continued up her leg onto her thigh, and stopped with his hand on her crotch. The inappropriate behavior greatly upset Plaintiff who felt that it was impossible to quit because she had two young daughters to support. Plaintiff reported these behaviors to the managers of the restaurant approximately 100 times and nothing was done to stop the behavior. Plaintiff’s work hours were gradually reduced so that eventually she was not even scheduled to work; the more she complained, the fewer hours she was scheduled to work.

After the Defendant had two attorneys withdraw from the case, a trial took place and the Court found that the Plaintiff established a prima facie case of employment discrimination based on her gender, retaliation, a sexually hostile work environment and intentional infliction of emotional distress. Further, the court found that the Plaintiff’s constant complaints to the Defendant’s management team regarding the hostile work environment, its outright dismissal of those complaints, its lack of action to stop the continued harassment, and its retaliatory conduct against the Paintiff provided a more than adequate basis for employer liability. Besides loss of income Plaintiff testified that the experience affected her emotionally, causing emotional pain and distress, suffering, mental anguish, and loss of enjoyment of life, all of which she experienced as a result of the defendant’s illegal conduct. The Plaintiff employee also had physical problems which arose from the sexual harassment and retaliation including a loss of sleep, a decrease in appetite, and increased stress. In addition, the entire work situation also affected the employee’s relationship with her boyfriend. Following a trial, the Court awarded the Plaintiff a sum total of $112,878.80 which includes $16,792.31 for lost wages, $50,000 for emotional distress, $43,257.50 for attorneys’ fees and $2,827.99 in costs.

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Sexual Harassment, Sex Discrimination and Retaliation: Police Department May be Responsible for the Severe or Pervasive Sexual Harassment and Retaliation by a Sergeant

In Gross v. Akill, 2013 U.S. Dist. LEXIS 155449 (E. D. Pa. October 30, 2013)(Slomsky, J.), a female police officer filed a complaint alleging sexual harassment, sex discrimination and retaliation against the Philadelphia Police Department and Police Sergeant Akill, alleging she was subjected to inappropriate sexual comments, including being asked out on dates, the Sergeant implying he wanted to have a romantic/sexual relationship with her, repeated references to Plaintiff as “my baby” and “my boo” and comments like, “don’t fight it,” “it’s going to happen,” “we are both adults and whatever happens stays between us,” and “being faithful is played out.”

Plaintiff complained to the Fraternal Order of Police and a Captain about the sexual advances, harassing and inappropriate comments, and that she felt she was being treated differently because of her sex and because she rejected the Sergeant’s advances. Thereafter, for 5 more months the Sergeant continued to make inappropriate comments and Plaintiff repeatedly told him to stop. On another occasion Plaintiff notified another Sergeant she would be late to work one day which was approved but when Plaintiff came in late, Sergeant Akill listed her as absent without leave and threatened to issue a counseling memo. Plaintiff then filed a charge with the EEOC and within 6 months while Plaintiff was not at work because she was on injured, a formal disciplinary action was instituted against Plaintiff for “Conduct Unbecoming.” as a result of Plaintiff’s alleged involvement in disputes with a neighbor.

In denying Defendants’ Motion to Dismiss the Court found that although, when considered individually none of the events alleged by Plaintiff could be considered “severe” or “pervasive,” when considered in their totality, the “overall scenario” could be found to create a hostile work environment. Accordingly, the conduct over the course of a one year period was found to be severe or pervasive enough to create a hostile work environment. The Court also found that Sergeant Akill was not merely a co-worker who did not have the authority to take a tangible employment action and applied the recent Supreme Court, Vance v. Ball State University, 33 S. Ct. 2434 (S.Ct. June 24, 2013), to find that the Police Department could be responsible for the conduct of Sergeant Akill since he had authority over the terms and conditions of her employment, overtime pay, tour of duty, hours of employment, and discipline. As such, the Court found enough facts to make it plausible that Defendant Akill had the authority to effect an undesirable reassignment of Plaintiff, and therefore was her supervisor.
The Court also found that Plaintiff demonstrated that her compensation, terms, conditions, or privileges of employment were impacted, raising an inference of an adverse employment action which could support a sex discrimination claim. In addition, the Court also found that Plaintiff had a plausible claim for relief for retaliation because she engaged in protected activity on two occasions when she opposed Sergeant Akill’s behavior by complaining about it to the FOP and a Captain and thereafter filing a EEOC Charge, and then Defendant Akill continued to make inappropriate comments, incorrectly labeled Plaintiff as AWOL, threatened to issue a counseling memo; and Plaintiff received formal disciplinary action on March 5, 2013 for “Conduct Unbecoming.”

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Sexual Harassment and Retaliation: Employee Employed for 6 Weeks Has Viable and Sexual Harassment and Retaliation Claim

In sexual harassment cases a brief period of employment and the prompt termination of the sexual harasser following notice to the employer are often seen as barriers to proceeding with legal action. Wilson v. Checkers Drive-In Restaurants, 2013 U.S. Dist. LEXIS 73062(May 22, 2013) (Padova, J.), demonstrates where there is repeated sexual harassment by a manager, even during a brief time period, there may be valid sexual harassment and retaliation claims.

In Wilson, the Plaintiff employee, a crew member at a restaurant, worked 11 shifts totaling 40 hours over a 6 week period. Each time the employee worked she was subjected to some form of sexual harassment by the restaurant’s manager including the manager, placing her hand on his genitals, whispering that she was “sexy”, using crass and explicit language, stating that he sexually desired her, graphically describing a sexual fantasies, physically touching the plaintiff while he passed her, rubbing his genitals against her and numerous sexually explicit remarks. The employee rejected the manager’s sexual advances and told him to stop each time. The last day she worked the manager followed Plaintiff into the freezer area touched her breasts, grabbed her between the legs, tried to kiss her, exposed his genitals, and invited her to perform oral sex on him. Later that day, the Plaintiff called the manager to ask about her schedule, and he told her that “when you give me some pussy, you get some time.” Thereafter, the Plaintiff checked the employee schedule, learned that she was not scheduled and did not call for work again.

Checkers maintains a toll-free telephone number for employees to report any workplace issue. Plaintiff called the Employee Hotline to report the manager was sexually harassing her. Checkers then initiated an investigation and while the manager denied engaging in the conduct, he admitted that he and the Plaintiff had a consensual sexual relationship. Checkers maintains a policy governing “closer than normal relationships” between supervisors and subordinates which requires that a supervisor who becomes involved in a relationship with a subordinate must report that relationship to Checkers or be subject to termination. Checkers fired the manager for violating the policy.

The Court concluded that the manager’s refusal to schedule Plaintiff for shifts on the employee schedule constituted a denial of hours which subjected the employee to an adverse tangible employment action, establishing a quid pro quo case of sexual harassment. The Court also found that the Plaintiff employee had a valid retaliation claim because despite Plaintiff’s complaints about the manager’s offensive conduct, his sexual advances became more aggressive over time and unlike the other employees; she was never given shifts on the employee schedule and statement that constituted retaliation for her complaints.

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