Female employees who work in male dominated manufacturing production environments may confront unique issues at the workplace. In Vollmar v. SPS Technologies, LLC E. D. Pa. no. 15-cv-2087 (December 2, 2016, Pratter J.), the court denied a motion for summary judgment, ruling that a female Pennsylvania employee can proceed to trial with her sex discrimination, retaliation, and sexual harassment claims against her current employer. The employee, who has worked for her employer for 27 years in a manufacturing plant where men comprise over 90% of the workforce, alleged that she was repeatedly exposed to sexual harassment at the workplace where there were ever-present sexual overtones of materials.
In Vollmar, the employee’s evidence included sexually oriented material at the workplace including a sign on a refrigerator that included phrases such as “My sexual preference is . . . often” and “I am not a bitch. I’ve just been in a very, very bad mood . . . for the past 30 years”; photographs of women, one with the word “PIG” written across it; a small box containing four small plastic or candy breasts, where the lid read “Bet you can’t eat just one”; and a Penthouse pornographic magazine. The employee also alleged that coworkers and managers regularly directed sexist comments toward her, including calling her a “bitch” several times a week; she had been told that “It’s just like a woman to do that”; she was regularly told that she did not know what she was talking about because she was a woman; and evidence that a coworker had a habit of staring at her during work hours.
Ironically, the female employee was being investigating by Human Resources for a code of conduct violation regarding a relationship with a male coworker. At that time, she complained about the untoward comments made to her and disparate treatment. The employee testified that
that Human Resources representatives acknowledged that bringing the toy breasts or a pornographic magazine into the workplace would violate SPS’s Sexual Harassment policies. Following the investigation, the female employee received a written warning for a violation of the Code and returned to work after a 10-day suspension and the male coworker was terminated.
To establish what the law terms a prima facie case of a sexually hostile work environment, an employee must show: (1) the employee suffered intentional discrimination because of sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the employee; (4) the discrimination would detrimentally affect a reasonable person in that position; and (5) the existence of respondent superior (employer) liability.
To determine whether an environment is sufficiently hostile or abusive, courts look to a number of factors, including the frequency of the discriminatory conduct; its severity; whether the conduct at issue is physically threatening or humiliating, or a mere offensive utterance; and whether the conduct unreasonably interferes with an employee’s work performance. Workplace conduct may be severe, pervasive, or both, as a single incident of severe harassment in the workplace may contaminate the work place to such a high degree that it will be considered hostile. Where the harassment is not severe, a collection of incidents of harassment must occur either in concert or with regularity. The use of derogatory and insulting terms relating to women at the and the posting of pornographic pictures in common areas and in personal work spaces may serve as evidence of a hostile environment.
In Vollmar, the court found that considering the frequency and variety of the types of gender-based and sexual language, material, and conduct a jury could determine that the harassment was severe or pervasive.
It is important to keep in mind that even where there is sexual harassment, in some instances the employer is not automatically liable for the conduct. Employer liability may depend on whether the sexual harasser is the employee’s coworker or a manager / supervisor. Unlike nonsupervisory harassment, employers can be liable for harassment by supervisors with authority even if the employer did not have notice of the harassment. In circumstances where the sexual harassment is not by a manager or supervisor, an employee must show that management level employees had actual or constructive knowledge of the sexual harassment and the employer failed to take prompt and appropriate remedial action such as failing to train, discipline or terminate employment upon receiving notice of the sexual harassment.
The foundation of a retaliation claim is that the employee reported conduct that is protected by the law and the employer took action against the employee for reporting the conduct. In evaluating retaliation claims in Pennsylvania, federal courts apply the McDonnell Douglas three-part burden-shifting framework which requires that an employee must first establish a prima facie case, showing that the employee engaged in protected activity; the employer took an adverse employment action against the employee; and there was a causal connection between the employee’s participation in the protected activity and the adverse employment action. Once the employee meets this burden, the employer must offer a legitimate, non-discriminatory reason for the adverse employment action. Then the employee must show pretext by pointing to some evidence from which a jury could reasonably either disbelieve the employer’s articulated legitimate reason; or believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.
To make out a prima facie case of retaliation, a plaintiff must also show evidence that establishes a causal link between the protected activity and the adverse action. In Vollmar the employee argued that the record established a causal link between the adverse action and her complaint as the employee complained about certain conduct, as well as other sexual harassment, as late as seven days before she was suspended. The court held that the written warning constitutes an adverse action and that a reasonable jury could find that such action constitutes retaliation.
Andrew Abramson of Employment Law represent Pennsylvania employees who have been subjected to sexual harassment and retaliation by their employers. For more information on sexual harassment and retaliation see http://www.job-discrimination.com/sexual-harassment.html.