9th Circuit Reminds that Crude and Offensive Remarks Alone Do Not Create a Claim for Hostile Work Environment
In Westendorf v West Coast Contractors (2013) the Plaintiff, a project manager assistant, claimed hostile work environment based on sexual harassment, based on several sexual comments she heard from her manager, some of which were directed to her and others were directed to another woman. The Court affirmed that dismissal of the case. The Court noted yet again that isolated inappropriate comments, without other evidence of sexual discrimination or unlawful harassment, do not create a viable hostile work environment claim. Plaintiff was, however, allowed to proceed forward with her retaliation claim. This is because even though there was no sufficient evidence to prove the harassment claim, the court found that there was sufficient evidence to allow the Plaintiff to show
This decision makes a lot of sense. It would be impractical and borderline nonsensical to allow every inappropriate comment or sexual innuendo/joke turn into a lawsuit for obvious reasons. The Court requires evidence of unlawful hostility against an employee based on a protected class that goes beyond a few isolated comments, especially of those comments are taken out of context.
The Ninth Curcuit extensively discusses the sexual harassment law as it applies to male victims in it recent decision, filed on September 3, 2010 - EEOC v. Prospect Airport Services, Inc. In that case the claimant - a Christian male was sexually propositioned over and over by a female co-worker over a period of many months. Despite the claimant's complaints to his supervisor and human resources department, they would mostly jokingly dismiss his complaints, nor believing that a male can actually suffer from a woman's advances.
The lower (trial) has dismissed the case in large part due to the claimant's testimony that other men wouldn't have minded if they were in his position. However, the appellate court was not persuaded that this is a good reason to dismiss the case, stating and rightfully saw that just because some other men would have flattered by such aggressive attention from a woman doesn't mean that this specific plaintiff is not a victim of hostile work environment.
The other significant point that the Ninth Circuit emphasized in its decision to reverse the dismissal and remand the case for further proceeding is total lack of response from the employer. An employer is liable for an employee's sexual harassment of a co-worker if it knew, or should have known, about the harassment and failed to take prompt and effective remedial action. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). Harassment is to be remedied through actions targeted at the harasser, not at the victim. In this case, the management was well aware of the harassment complaints by the victim, but they did absolutely nothing except dismiss his complaints with sexual jokes. This decision further reinforces the well established law that discrimination because of sex protects men as well as women. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998).
Many workers are used to believing that sexual harassment hostile work environment is an unlawful conduct at work place which involves unwelcome sexual advances of a co-workers or a supervisor such as sexual innuendos, offensive touching, and alike. Although those are typical examples of a situation which is likely to be classified as sexual harassment, the offensive words or conduct directed at an employee because of his or her gender may create a hostile work environment even if those words or conduct are not sexual in nature. For example, using a word “bitch” repetitively in the presence of both men and women but in reference to women may constitute unlawful gender harassment.
Suppose, you sign up with a temp employment agency to find a job, the place you in a temporary assignment at one of their clients’ sites where you end up being a victim of sexual harassment. How would be liable in this situation - the company where you were temporarily employed, the temp agency or both?