Let’s start with the premise that there I no perfect case. There is always risk from bad judges, good judges that just get it wrong, and certainly, juries can be unpredictable. No matter how good you think your cases is, there is still risk. With that said, employers have the same risks and employees should fight until they get the right value.
Let’s look at a recent case as an example. In Szyper v. Am. Med. Response Mid-Atl., Inc., No. 21-3272, 2023 WL 2597585 (3d Cir. Mar. 22, 2023), Tracy Szyper sued her former employer American Medical Response Mid-Atlantic Inc. claiming that she was subjected to a hostile work environment when Leslie Brock, a more senior employee, grabbed Szyper’s wrist and made two crude and offensive sexual comments. Specifically, the United States Court of Appeals for the Third Circuit detailed the incident as follows:
Szyper documented the incident in a report recounting that “Brock had told me to cover my ears. I looked at him & said jokingly ‘I’m not listening to you anyway.’ He asked me again to cover my ears. I cupped my hands over my ears but could still hear what was said. Brock said to [two other employees], ‘that made my dick hard.’ I uncupped my hands and told him I heard what he said. Brock then proceeded to grab me by my wrist and say something along the lines of ‘Help me fix my problem.’ I told him to ‘get the fuck off me.’ I proceeded to put my cigarette out and go back inside. This incident made me feel extremely uncomfortable.”
The above quote was relegated to a footnote in the Court’s opinion, presumably because they wanted to bury the offensive details of conduct to a more discrete location.
The HR representative recommended firing Brock – which is what should have happened. Nonetheless, Daniel Brown, AMR’s operations manager in charge of AMR’s Essington Avenue location, and Edward Powers, the AMR regional director, rejected that recommendation and issued Brock a “Final Written Warning” for inappropriate behavior. Szyper quit when she found out that she would still have to work with Brock regularly.
This is not a good look – not firing a male employee who physically gripped the wrist of a lower-level female while suggesting that she get him off.
Now, the next part is pure speculation on my part. Given how bad this looks, I suspect that AMR and AMR’s employment lawyers knew that they had serious risk, would look bad, and would face a large cost to fight this battle (I would estimate that they spent over $300,000). Moreover, if the case got past summary judgment, this is not a case that a jury was going to sympathize with the employer on. With this in mind, I would have to guess that the employer made a settlement offer – how good a settlement offer, we will never know.
However, what we do know is that whatever the offer was, it was more than Szyper ended up getting because the United States District Court for the Eastern District of Pennsylvania dismissed the case holding that the conduct, albeit bad, was insufficient to create a legally hostile work environment. The United States Court of Appeals for the Third Circuit affirmed holding:
Szyper complains of one instance of offensive conduct and concedes that Brock never acted inappropriately toward her before or after. As the incident was isolated, the conduct must have been “extremely serious” to create a hostile work environment. Id. Szyper has not shown that. The circumstances reveal an unquestionably offensive and distasteful action by a more senior employee. But courts have regularly held that more severe actions fall short of the severity required by Title VII. See, e.g., Bowman v. Shawnee State Univ., 220 F.3d 456, 463–65 (6th Cir. 2000) (supervisor’s offensive touching not severe enough to create hostile work environment); Adusumilli v. City of Chicago, 164 F.3d 353, 361–62 (7th Cir. 1998) (supervisor’s four incidents of improper contact and sexual comments to subordinate did not establish a hostile work environment).
Considering all material facts and drawing reasonable inferences in Szyper’s favor, the District Court correctly concluded that “[l]ooking at the totality of the circumstances in this case, the single incident alleged was not severe enough to be sexual harassment.” So summary judgment to AMR was proper because Szyper’s sex-based hostile work environment claims fail under Title VII
Id. at *2 (citations to record omitted).
Do I agree with this decision? Absolutely not. This should have been left to the jury to decide if the severity element was met.
Am I surprised by this decision? Also, absolutely not. Court unfortunately often insert themselves into employment questions of fact – although they shouldn’t. As a result, there is now sufficient precedent that allows these fact-deciding courts to have a legal basis to do so. It creates lots of risks for employees.
When both sides understand the risk, settlement is the best solution. If the Defendant employer does not understand the risk and is unwilling to fully and properly engage in settlement discussion, make sure that you have trial attorneys that are willing to fight and have the experienced to stand before a jury for you.
Best Employee’s Workplace Rights Lawyer Blogs on Point:
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What is the severe and pervasive requirement to create a hostile working environment under Title VII?
Under Title VII of the Civil Rights Act of 1964, an employer is prohibited from discriminating against employees based on their race/color, gender, gender identity, sexual orientation, national origin, and religion. Likewise, the Americans with Disabilities Act (“ADA”) and Age in Employment Act of 1967 (“ADEA”) protect employees from disability and age discrimination respectively. One type discrimination of that is recognized under these statutes is a hostile work environment, which occurs when an employee is subjected to severe or pervasive harassment based on one of the above protected characteristics.
To establish a hostile work environment claim, the employee must show that the conduct he/she/they experienced was severe or pervasive enough to create an abusive work environment that altered the terms or conditions of their employment. This means that isolated incidents of discriminatory conduct are typically not enough to establish a hostile work environment. Instead, the conduct must be frequent, ongoing, or severe enough to create a work environment that a reasonable person would find to be hostile or abusive.
Courts have applied this severe and pervasive requirement in a variety of cases. For example, in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the United States Supreme Court held that the conduct need not cause a tangible psychological injury, but rather must be such that it would interfere with a reasonable person’s work performance. In another case, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the United States Supreme Court held that an employee must show that the harassment was both subjectively and objectively offensive.
In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the Supreme Court held that an employer is not automatically liable for the harassing conduct of a supervisor if the employer did not know about the harassment and the employee did not suffer a tangible employment action (such as demotion, termination, or a significant change in job duties) as a result of the harassment. In reaching this decision, the Supreme Court rejected the argument that Title VII creates a “civility code” for the workplace and held that “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discrimination… because of… sex.’” The Court emphasized that Title VII is not a “general civility code” and that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’”
The Burlington Industries decision clarified that Title VII is intended to protect employees from discrimination, rather than to impose a general duty on employers to maintain a certain level of civility in the workplace. This means that not all offensive conduct in the workplace will necessarily give rise to a Title VII claim, and that the severity and pervasiveness of the conduct will be an important factor in determining whether a hostile work environment has been created.
Overall, the severe and pervasive requirement reflects the principle that Title VII is intended to address serious and significant instances of, rather than minor or trivial incidents.
Best Sexually Hostile Work Environment Attorney Blogs on Point:
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Am I in a hostile working environment?
Very rarely is there a definitive or clear enough answer that you can figure it out without getting direct legal advice from a qualified employee’s rights law firm. If you even believe that you might be in a hostile work environment based on your race, national origin, gender, age, religion or disability; or even think that you might need a workplace rights lawyer, it would be best 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; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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