It is a common misconception that sexual harassment can only occur if the harasser acts out of sexual desire toward the victim. However, as the Sixth Circuit recently explained in Waldo v Consumers Energy Co., any unequal treatment of an employee that occurs solely because of the employee’s gender can be the basis for a claim that sexual harassment has created a hostile work environment. (Unlike other bloggers, our employment discrimination attorneys will not make Where’s Waldo jokes.)
In Waldo, the female employee claimed she was regularly subjected to sexual harassment while employed as an electrical line worker. Waldo and her male coworkers often worked in remote locations where her male coworkers would relieve themselves in the open. Said coworkers demanded that Waldo also urinate in the open “like a man,” and on one occasion locked her in a porta-potty, sealing her inside with tape. She was only able to escape after cutting the tape with a pocket knife.
According to Waldo, male coworkers also took her purse and threw it away, claiming that purses were “not allowed” in the work area. Further, Waldo endured constant verbal abuse since male coworkers refused to refer to her by name and instead used gender-specific, degrading language such as bitch, c#nt, and dike.
Waldo complained numerous times about the harassment to her supervisor, but he simply replied that he did not believe in training women as electrical line workers and intended to “wash [Waldo] out” of the program. Waldo then took her concerns to a union representative as well as human resources. However, no formal investigation was conducted and no formal reprimands were given. Instead, the employer responded to Waldo’s complaints by holding a diversity and inclusion seminar, which covered diversity issues generally, but did not address any of the specific gender-based harassment that Waldo had complained about. Needles to say, the halfhearted response did not end Waldo’s torment.
Ultimately, Waldo was terminated from the training program after she made mistakes during a surprise evaluation. At trial, a male coworker testified that the surprise evaluation was specifically engineered to push Waldo out of the program. Following her termination, she filed suit against her employer claiming, among other things, that the conduct of her coworkers and supervisor created a hostile work environment based on pervasive sexual harassment in violation of Title VII of the Civil Rights Act of 1964.
To make out a gender-based hostile work environment claim under Title VII, Waldo had to show that (1) she belonged to a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment; and (5) the defendant knew or should have known about the harassment and failed to act.
Waldo’s employer argued that she could not meet the third requirement of showing that the harassment was based on sex because, although motivated by her gender, the harassment was not sexual in nature. However, at trial a jury agreed that Waldo had suffered sexual harassment and, as a result, was forced to work in a hostile work environment. After finding in her favor, the jury awarded Waldo more than $7-million-dollars in compensatory and punitive damages. On appeal, the Sixth Circuit affirmed the award, which was reduced to around $1-million due to statutory caps. In rejecting the employer’s argument, the Sixth Circuit noted that non-sexual conduct may be illegally sex-based if it is motivated by a desire to harass and degrade an individual solely because of his or her gender.
There are a couple of important takeaways from this recent decision. The first major takeaway is that, for purposes of establishing a gender-based hostile work environment claim under Title VII, sexual harassment really just means sex-based or gender-based harassment that is severe or frequent enough to disrupt the work environment.
The second major takeaway is that an employer is required to address an employee’s complaints about harassment in a meaningful way. Once a specific problem has been identified, it is no longer sufficient for the employer to merely encourage diversity and acceptance generally. The actual problem must be addressed, and for those employers who attempt to gloss over real issues by providing general reminders about inclusion and acceptance, the failure to address the actual problem could cost millions.
If you believe that your employer has discriminated against you in any way based on your gender, it is important to call an experienced employment attorney who will explain your rights and any possible remedies you may have.
If you feel that you are being discriminated based on your gender or sex, then call the right attorney. It is never appropriate to discriminate against female employees
Discrimination against women includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages. When you call the right attorney to schedule a free and confidential consultation at 866-797-6040, you will meet with an attorney from The Spitz Law Firm to discuss wrongful discrimination claims and help you determine the best way to pursue your gender/sex discrimination claims.
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