Employment Law Update - Late Spring 2004
SEXUAL HARASSMENT - FOURTH CIRCUIT AFFIRMS JURY'S VERDICT
Spring 2004
By Peter D. Guattery
Lisa Ocheltree worked for a company that makes costumes. As the only female employee in the production shop, Ocheltree was subjected to coarse sexual talk and antics by the male employees. This conduct included using a mannequin as a prop to engage in sexual antics in front of Ocheltree, singing a lewd song to her, and showing her a sexually explicit book. The male employees also used sexual insults to needle each other in front of Ocheltree and discussed their sexual exploits in graphic terms. Her reaction would then generate laughter from the men. In accordance with the company’s “Open Door Policy,” Ocheltree repeatedly complained to her immediate supervisor who ignored the problem. When she attempted to register her concerns with upper management, they were never available to hear her complaints.
Ocheltree filed a charge with the EEOC, alleging sex discrimination under Title VII. After failing to resolve the matter, the EEOC issued a Right to Sue Letter. Ocheltree filed a complaint in the U.S. District Court and the district court granted summary judgment for the employer. On appeal, the Fourth Circuit Court of Appeals (where federal cases under Title VII, originating in Maryland, are eventually heard) vacated the judgment on the hostile work environment because of her sex. The district court denied the employer’s Motion for Judgment as a Matter of Law, and the employer appealed. A divided panel of the Fourth Circuit then held that the company was entitled to judgment as a matter of law because the behavior directed at Ocheltree was neither because of her sex nor sufficiently severe or pervasive to constitute a hostile work environment.
Ocheltree petitioned the Court for rehearing “en banc” and this request was granted. On rehearing en banc, the Fourth Circuit held that the evidence supported the jury findings that the offensive conduct was sex-based and objectively severe or pervasive so as to alter the conditions of Ocheltree’s employment and create an abusive work environment.
To establish a Title VII claim for sexual harassment, a female plaintiff must prove that the offending conduct was all of the following:
(1) unwelcome; (2) based on her sex; (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment; and (4) imputable to her employer. The employer did not dispute that Ocheltree proved unwelcome conduct.
First, the Court found that the jury’s “because of sex” finding was easily sustained. The critical issue in this inquiry is whether members of one sex are exposed to disadvantageous terms and conditions of employment to which members of the other sex are not exposed. A trier of fact may reasonably find discrimination when a woman is the individual target of open hostility because of her sex or when “a female victim is harassed in such sex-specific and derogatory terms . . . as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.” Oncale v. Sundowner Offshore Servs., Inc. (1998) 523 US 75, 80, 118 SCt 998. In Ocheltree’s case, the Court held that a reasonable jury could find that much of the sex-laden and sexist talk and conduct in the production shop was aimed at her because of her sex. The men behaved as they did to make her uncomfortable and self-conscious as the only woman in the workplace. A jury could find that much of the conduct was particularly offensive to women and was intended to provoke Ocheltree’s reaction as a woman. No man in the shop was subjected to the same embarrassments as she was, the Court noted.
The Court also held that a rational jury could find that a reasonable person in Ocheltree’s situation would regard her work environment as abusive. The “severe or pervasive” element has both subjective and objective components. In deciding whether a jury could find a work environment objectively abusive, the court should consider all of the circumstances, including the frequency of the conduct and its severity. Here, a reasonable jury could find that the various mannequin incidents, the vulgar song and book, and the graphic descriptions of sexual activity that consistently painted women in a demeaning light were sufficiently severe or pervasive to alter the conditions of Ocheltree’s employment to create an abusive work environment.
This conduct was also imputable to the employer via negligence or constructive knowledge. In a case where an employee is sexually harassed by a coworker, an employer may be liable if it knew or should have known about the harassment and failed to take effective action to stop it. The Court found that the employer could be charged with constructive knowledge of Ocheltree’s harassment because the company failed to provide adequate complaint procedures. It failed to place any duty on supervisors to report incidents of sexual harassment to their superiors. Also, despite its “Open Door Policy,” Ocheltree tried unsuccessfully to talk to upper management on numerous occasions to report the harassment. A jury could reasonably conclude that this policy was an illusion, at least so far as Ocheltree was concerned. The employer should have known about the harassment, and the company could be charged with knowledge because it did not provide reasonable avenues of complaint. Ocheltree v. Scollon Productions, Inc. CA4) 335 F3d 325 (2003).
This recent case is especially important for employers in the Maryland, Virginia and West Virginia area in that the Fourth Circuit determines the federal law regarding sexual harassment in these states. Here, the employer appears to have done everything wrong, from the failure to have an adequate complaint procedure to its failure to train and monitor employees and supervisors in the “do’s and don’t’s” of sexual as well as other forms of harassment law. Let this be a lesson.