Spitz, The Employee’s Law Firm

Call The Right Attorney™

No Fee Guarantee

Does A Coworker’s Porn Create A Sexually Hostile Working Environment Claim?

by | Sep 15, 2022 | Employment Discrimination, Employment Law, Federal Law Update, Gender Discrimination, Retaliation, Sexual Harassment, Wrongful Termination |

Does a coworker showing a pornographic video during training cause a hostile working environment claim on the basis of sexual harassment?

Sexual Harassment Attorney Answer: By itself, probably not. But just like every other question you ask an attorney, it depends. Let’s dig into the “it depends” a little deeper by looking at rhe United States Sixth Circuit Court of Appeals’ recently released opinion in Bar v. Kalitta Charters II (No. 21-1739, 2022 WL 3042844 (6th Cir. Aug. 2, 2022)). In this case, a pilot, Terrance Bar, faced sexual harassment during his training. Specifically, his Check Airman “made dist[ur]bing and intimidating comments on [a] soc[i]al media platform[,]” “made ‘a disturbing sexual suggestive simulation act’ during a meeting at a hotel in Miami, Florida[,]” and showed Mr. Bar and a colleague “‘a homosexual pornographic video on his cell phone.’” And all of this occurred during training! Disgusted by the acts of his trainer, Mr. Bar first tried to report the conduct to the Director of Training. He called the Director’s phone, but the director didn’t answer, so he left a voicemail. He then called and met with the Chief Pilot to explain the conduct by the Check Airman training him. This complaint to the Chief Pilot was a protected complaint of sexual harassment (Best Law Read: What is a Hostile Working Environment?; What is a Sexually Hostile Work Environment?; What Qualifies a Hostile Working Environment under Title VII?).

After his employment was terminated, Mr. Bar filed a lawsuit against Kalitta Charters asserting several claims, included for a hostile work environment on the basis of sexual harassment. Kalitta Charters filed a motion to dismiss, and the Court found that Mr. Bar had “failed to allege sufficient facts to state a plausible claim for relief.” Bar v. Kalitta Charters II, LLC, at *2. Despite that his trainer was showing him porn in the workplace (and the other uncontested harassing instances), the trial court found that that was not enough to show a hostile working environment as the harassment stopped after he complained and the check airman’s (his trainer’s) conduct.

“Although [the trial Court] had ‘no doubt’ that Bar found [the check airman’s] conduct subjectively offensive, the district court determined that the three, ‘vaguely allege[d]’ incidents of harassment ‘fall far short of the objectively severe or pervasive conduct’ necessary to state a hostile-work-environment claim.” Id. at *3. The Court held that, because the check airman was not a supervisor over Mr. Bar, the company had no vicarious liability for his harassment. In place, he had to show that Kalitta Charters “knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action.’” (quoting Clark v. United Parcel Serv., Inc., 400 F.3d 341, 348 (6th Cir. 2005)). The Court agreed that the company knew or should’ve known of the sexual harassment via Mr. Bar’s complaint to the Chief Pilot, but there was still not hostile working environment because it “appear[ed] from the complaint that after Bar reported the pornography incident to [the Chief Pilot], the alleged harassment stopped altogether.” Bar v. Kalitta Charters II at *4. The Sixth agreed with the Trial Court in finding that the hostile working environment claim still failed, and Mr. Bar lost that claim.

A large part of this decision came down to the issues of vicarious and supervisor liability, which I will break down a little further.

What is vicarious liability?

Best Employment Law Attorney Answer: Vicarious liability is a legal concept that where one person or entity is held financially responsible for the conduct of others. In employment law specifically, vicarious liability is a company’s liability on behalf of its employees (and supervisors/managers in particular). A company will more often be liable for actions taken by its supervisors and managers towards its regular employees than it is for equal level employees. “‘In the case of a harassing supervisor, the employer is vicariously liable for the hostile work environment.’ Doe v. City of Detroit, 3 F.4th 294, 301 (6th Cir. 2021). But when committed by a coworker, the employer is liable only ‘if it knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action.’” Id. (quoting Clark v. United Parcel Serv., Inc., 400 F.3d 341, 348 (6th Cir. 2005)). Bar v. Kalitta Charters II, at *3. (Emphasis added). (Best Law Read: Can Managers be Personally Liable?; How do you Prove Causation in Wrongful Termination Claims?; How do you Win a Discrimination at Work Lawsuit?)

If the harasser is not a supervisor, (i.e., if the harasser is an equal level coworker or a subordinate), employees have a duty to report the harassment, or else the company will not be liable at all. Further, if the harassment stops after reporting the conduct, it usually won’t rise to the level of being severe and/or pervasive, a surprisingly high standard (Best Law Read: Why Reporting Sexual Harassment is Critical; Top Employment Lawyer Reply: How Do I Prove That I Work In A Hostile Work Environment?; Race Discrimination: Using The “N-Word,” Even Once, Can Create A Hostile Work Environment).

Thus, you should always report to management and/or Human Resources in writing when you are being sexually harassed in the workplace. If you don’t, and the company didn’t know via other methods of the harassment, your claim will almost certainly fail.

Who is considered a supervisor for the purpose of vicarious liability?

Best Employment Law Attorney Answer: Per the United States Court of Appeals for the Sixth Circuit in Bar, “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim. … Tangible employment actions are those that result in a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at *3 (quoting Vance v. Ball State Univ., 570 U.S. 421, 424 (2013); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). It is not enough to train other employees to be considered a supervisor under vicarious liability, a supervisor also has to have the ability to change one’s work in an important way.

How do I prove an employment retaliation claim?

Best Employment Law Attorney Answer: To assert a retaliation claim, one must prove that the “(1) [the employee] engaged in Title VII protected activity; (2) the employer knew that he engaged in that protected activity; (3) the employer subsequently took an adverse employment action against him; and (4) the adverse action was causally connected to the protected activity.” Bar at *4 (citing Taylor v. Geithner, 703 F.3d 328, 336 (6th Cir. 2013) (Best Law Read: What are Examples of Unlawful Retaliation at Work?)

In our case today, Mr. Bar did report the harassment (a protected activity) to the Chief Pilot, and thus Kalitta Charters knew of the harassment.

After Mr. Bar’s protected report of sexual harassment, he contends that Kalitta Charters (the defendant/employer charter airline) retaliated against him by changing his reporting airport to CVG International Airport (increasing his drive-time by more than three hours from his previous airport), refused to provide him hotel during his overnight stays (when it provided lodging to other pilots), forcing him into further retraining that a similarly-situated colleague wasn’t forced into, and took an adverse employment action against him by eventually terminating his employment (Best Law Read: What Constitutes An Adverse Employment Action Under Title VII?; What Constitutes Sexual Harassment in the Workplace?).

Still, the trial court also found against Mr. Bar for his retaliation claim, citing that the harasser was not a supervisor, and thus could not have illegally retaliated against him.

He also pleaded that the resulting treatment after was causally connected to his complaint of harassment. The Trial Court held:

“Bar did not sufficiently allege that he engaged in protected activity because he could not have had a ‘reasonable, good faith belief’ that the incident involving the pornographic video constituted unlawful sexual harassment. Id., PID 177. The district court further found that the only alleged incident of retaliation that constituted an adverse employment action was Bar’s termination. In the district court’s view, Bar’s termination lacked a sufficient causal connection to his complaint about the pornographic video because Bar himself alleged that he was terminated because Check Airman [] made a comment on the instructor form after one of Bar’s recurrent training sessions. The district court also concluded that the temporal proximity of the two events was not ‘significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation.’ Id., PID 185.”

Our wrongful termination attorneys has blogged extensively on the pros of bringing retaliation claims before (Best Law Read: Retaliation FAQs; Retaliation is Still Easier to Prove than Discrimination; How do I Prove Illegal Retaliation by my Job under Title VII?; Why Retaliation is the Easiest Employment Claim), and this case is yet another example as to why retaliation claims are the easiest to prove. In overruling the District Court, the United States Court of Appeals for the Sixth Circuit held that the lower court “required [Mr. Bar] to allege too much at the pleading stage[,]” when all he had to do in his lawsuit at this stage was “provide an ‘adequate factual basis’ for his retaliation claim[,]” which the Appellate Court held he did.

But what if I don’t have all the evidence of what happened? Can I still have a case?

Best Litigation Attorney Answer: It’s entirely normal not to have all of the evidence needed for a case. Basically, no case ever does. But that’s the point of discovery (the exchange of evidence and the like), so the rest of the evidence can still be used, even when you don’t have all of it. (Best Law Read: How Courts Work, Steps in a Trial; You Don’t Need All Evidence to Start a Discrimination Case).

Do I have a case for sexual harassment, hostile work environment, and retaliation?

Best Employment Lawyer Answer: Possibly. If you were sexually harassed at work and were fired for it, make sure to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

Disclaimer:

This employment law website is an advertisement. The materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “What is Sexual Harassment?”, “What to do if I’ve been fired for complaining of harassment at work?,” or “I was fired for complaint about my boss’s porn to HR”, it would be best for to contact an experienced attorney to obtain advice with respect to any employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.