PART III:
In Part I & Part II of this article we covered how Sharon Kaytor filed a hostile work environment claim after her boss made repeated sexual and violent comments toward her. He yelled “you have a flat ass” after her as she was walking away. He yelled “she’s going to spread her legs for the doctor,” loud enough for other employees to overheard. Sharon’s boss gave her a “Pussy Willow” plant with a suggestive note, which became the talk of their department. Finally, Sharon’s boss told her that he wanted to see her dead. He also said he wanted to see her “in a coffin”.
Despite all of these facts, Sharon’s employer — submarine manufacturer Electric Boat of Connecticut — denied that Sharon was subjected to a hostile work environment. Electric Boat claimed that Sharon was suffering from paranoia, and told her that if she didn’t undergo psychiatric testing she would be fired. When she took longer than 8 days to schedule a psychiatric exam, Electric Boat fired her for insubordination and maintained that it had nothing to do with her hostile work environment claim.
On March 1, 2009, the trial court issued it’s opinion on Electric Boat’s summary judgement motion — where Electric Boat asked the court to throw out Sharon’s hostile work environment lawsuit. For Sharon, everything got a lot worse before it got better.
The federal district court judge (the trial court judge in our federal court system) dismissed Sharon’s entire case against her boss and Electric Boat. The court’s reasoning makes me so mad, that it’s actually difficult to write about.
The judge wrote that what Sharon’s boss Dan did to her only amounted to “a few incidents that spanned a number of years”. The judge downplayed Dan’s explicitly sexual actions, calling them “episodic over a number of years” and “not sufficiently severe to overcome their lack of pervasiveness.”
The judge also opined that Dan’s gift of a pussy willow plant to Sharon (with a note about it giving her “pleasure”) was not necessarily sexual. The judge actually wrote that the note had no sexual references (“pleasure”?!?!).
But what about the death threats, and claims that Dan wanted to see Sharon in a coffin, you are probably wondering, right? Well, the judge noted that Dan told Sharon he wanted to choke her six times during one year. And, the judge acknowledged that six more times the Dan told Sharon that he wanted to see her in a coffin. So in the judge’s eyes, did a supervisor threatening to kill his employee equal a hostile work environment?
This is what the judge said: “the Plaintiff has not offered any facts from which a reasonable jury could infer that these threats were made because of the Plaintiff’s sex.” (WTF!?!?!?)
How many men did supervisor Dan threaten with death, or claim would look good in a coffin? When a man threatens a woman with physical violence after the woman refuses social invitations from the man, how can threats be caused by anything other than gender/sex? But the trial judge ruled that none of this amounted to a hostile work environment based on Sharon’s gender, or due to refusing Dan’s sexual advances. Trial court opinions like this one give the law a bad name. Fortunately, for the law, for Sharon, and for you, we have Courts of Appeal.
THE APPEAL
Sharon Kaytor appealed the trial court’s decision to throw her case out prior to trial. Her employer, Electric boat, responded by arguing that the judge correctly determined that “[Sharon] McCarthy’s alleged statements and conduct did not create an actionable hostile work environment.”
The court of appeals first reviewed the trial judge’s decision to throw out the hostile work environment claim (it also reviewed Sharon’s retaliation claim). The first thing an appeals court does is set out the law. What is the legal standard for a hostile work environment claim?
“[w]hen the workplace is 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,’ … Title VII is violated,” Harris, 510 U.S. at 21, 114 S.Ct. 367 (quoting Meritor, 477 U.S. at 65, 67, 106 S.Ct. 2399
An important thing the appeals court did, that the trial court did not do, is look at the sum total of all thing things that Dan did to Sharon. The trial court judge looked at each event in isolation, ruling that each discrete event did not amount to a hostile work environment. But the trial court never really added all those smaller events all together and considered whether all the smaller harassing events added up to a hostile work environment.
The court of appeals explained it this way:
As to “whether an environment is `hostile’ or `abusive,’” Harris stated that the matter “can be determined only by looking at all the circumstances.” 510 U.S. at 23, 114 S.Ct. 367 (emphasis added). These may include 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. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Because the analysis of severity and pervasiveness looks to the totality of the circumstances, “the crucial inquiry focuses on the nature of the workplace environment as a whole,” Cruz, 202 F.3d at 570 (emphases added); see, e.g., Perry, 115 F.3d at 150-51.
This was not the only area, however, where the appeals court chided the trial court judge for applying the wrong standard to Sharon’s hostile work environment claim. The appeals court also zeroed in on the way that the trial court judge decided not to count Dan’s threats of violence, because (in the trials judge’s words, not mine) those threats were not based on Sharon’s gender.
The court of appeals (thankfully) felt differently, and cited caselaw to back up the idea that threats of violence CAN be related to a protected class when all the circumstances of the hostile work environment are considered together. The court of appeals stated:
“However, even if overtly gender-based discriminatory conduct is merely episodic and not itself severe, the addition of “physically threatening … behavior” may cause “offensive or boorish conduct” to cross the line into “actionable sexual harassment.” Cruz, 202 F.3d at 571.
In the case of Sharon working for Dan at Electric Boat, the “overtly gender-based discriminatory conduct” were things like Dan yelling about Sharon “spreading her legs for the doctor,” having “a flat ass,” and the pussy-willow incident (even though the trial judge disagreed about the plant).
The addition of “physically threatening behavior” was Dan threatening Sharon with choking, putting her in a coffin, and wanting to see her dead. The court of appeals is telling the trial court judge that these things should not be evaluated separately, but rather should be looked at as the total actions of one abusive boss toward an abused female employee. Because the violent threats come from the same person and are directed toward the same person, the violent threats should be considered part of the same pattern of creating a hostile work environment based on gender.
“Circumstantial evidence that facially sex-neutral incidents were part of a pattern of discrimination on the basis of gender may consist of evidence that “the same individual” engaged in “multiple acts of harassment, some overtly sexual and some not.”
That is EXACTLY what Dan did to Sharon at Electric Boat. The appeals court recognized that Sharon testified that Dan threatened her because she turned down his social and sexual invitations. When the trial court is deciding whether or not to allow Sharon’s case to go forward to a jury, the trial court is supposed to assume that the plaintiff (Sharon) is telling the truth. Instead, this trial judge tossed out much of Sharon’s story as unbelievable.
One of the most important points the appeals court made addressed Electric Boat’s argument that Dan threatened to choke a male employee too, so Dan’s choking threat toward Sharon was not based on her gender. Basically, Electric Boat was trying to use the equal opportunity jerk defense — arguing that Dan’s actions were not discriminatory toward women because he did the same type of jerk-behaviors to all types of employees, not just women.
This “equal opportunity jerk” defense is the basis for every H.R. investigation that ends with “Sorry complaining employee, although your boss did do a few unfortunate things, your boss did not do anything illegal.” This is H.R.’s response to almost every employee complaint about a bullying, harassing boss who has created a hostile work environment. “Your boss was merely rude, but did not say or do anything illegal.”
First of all, who says H.R. gets to decide? Well, if you take your claim to H.R., you are giving H.R. permission to decide for you. Don’t. If you want someone else, outside the company, to decide if what the boss did was merely rude or actually created an illegal hostile work environment, I explain what steps to take in my book. But before you go that route, consider the court of appeals decision in Sharon’s case.
“[T]he inquiry into whether ill treatment was actually sex-based discrimination cannot be short-circuited by the mere fact that both men and women are involved…. It would be exceedingly perverse if a male [supervisor] could buy… his company immunity from Title VII liability by taking care to harass sexually an occasional male worker, though his preferred targets were female.” Brown v. Henderson, 257 F.3d at 254 (internal quotation marks omitted).
This is SO important! I know of a supervisor wanting to fire an African American employee, and to escape discrimination charges fired a Caucasian employee two weeks before giving the African American her pink slip. Basically, the appeals court here is saying that a boss should not be able to hide behind the “equal opportunity jerk” defense. A bully should not be able to get away with picking on the mostly female administrative staff by occasionally yelling at one of the men in the office (or vice versa).
The court of appeals ended its review of the trial judge’s opinion by restoring Sharon’s case against Electric Boat and her supervisor Dan. The court stated that “the totality of the evidence… was sufficient to… show that because of her gender she was subjected to an abusive environment that altered her work conditions.” The court clearly stated that all of the bullying boss’s threats should be included when considering whether there was a hostile work environment. The court said:
“A rational juror may permissibly find that a reasonable employee would view any serious death threat or threat of physical harm as sufficiently severe to alter the employee’s working conditions and create an abusive environment. Even such threats communicated in jest, if made repeatedly, may reasonably be viewed as sufficiently severe.”
And the court of appeals didn’t stop there. The appeals court actually said that even without the threats, there was enough evidence of a hostile work environment based on gender and sex that the trial court judge should have let Sharon’s case go to trial:
“Further, a rational juror could permissibly find that a reasonable employee would have viewed [Dan] McCarthy’s sexual comments and actions—including his frequent leering at [Sharon] Kaytor’s body and his calling attention to her private parts by “yell[ing] out at the top of his lungs” for everyone to hear that Kaytor had a “flat ass”, “yell[ing],” when Kaytor was heading for the gynecologist, that she was “going where every man wants to be”, and finally giving Kaytor a pussy willow bush, which was the talk of the entire facility for days —as creating an environment that was abusive, humiliating, and materially worsening Kaytor’s working conditions.”
As mentioned earlier, it is a great thing, not just for Sharon Kaytor but also for you and me, that this case went all the way to the 2nd Circuit Court of Appeals. The panel of three judges correctly applied the law and reversed a horrid opinion by a trial judge who wouldn’t see evidence of sexual harassment if it was yelling about the judge having a flat ass.
Now we have a clear statement that the “equal opportunity jerk defense” should not be allowed to hide discrimination that causes a hostile work environment.
CURT’S TAKE-AWAY TIPS:
1. Do NOT Expect H.R. to Help You In Any Way.
HR will agree to “look into the matter” and then always always always come back to you and say “Nothing illegal happened.”
2. Learn Your Legal Rights!
You don’t have to accept H.R.’s blow-off of your complaint. H.R. is not the only place you can go to complain. Why go the one department you know will say “there is no hostile work environment”?
3. Don’t Give Up:
Consider Sharon Kaytor. H.R. and the company where she worked for 34 years accused sided with her boss. Then the company accused her of being paranoid and fired her, even after she was sexually harassed and threatened with death. Then a federal trial court judge blew off her complaint too. But she didn’t give up, and at the court of appeals level, she won. Now her case is setting important precedent for other employees, and sending a chill down the spine of HR people. You can be the next Sharon Kaytor if you are willing to learn about your rights and take action.
I explain all about how to fight back against a hostile work environment caused by an irrational bullying boss in my e-book, “Work Laws Exposed”. Click here to learn how you can use my letter template today and hand it to your employer tomorrow to start fighting back and taking control of your work life right now.
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Wonderful story Curt! That is great!!!