Boy, some courts just get it wrong. Our employment discrimination lawyers have discussed before the risks that every case faces. No matter how good a case may look, there is no guarantee that it wins or even makes it to a jury.
Today, we look at the recent case Norris v. NLMK Pennsylvania LLC, No. 22-3186, 2024 WL 1209747 (3d Cir. Mar. 21, 2024), in which the United States Court of Appeals for the Third Circuit sexual hostile work environment claim. On its face, this looks like a very good claim, but the risks always lurk.
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What is a sexually hostile work environment under Title VII?
Title VII of the Civil Rights Act of 1964 prohibits sexual harassment that creates a hostile workplace. Under Title VII, a sexually hostile work environment claim arises when an employee experiences unwelcome sexual conduct or behavior in the workplace that is severe or pervasive enough to create an abusive or hostile work environment. To establish a sexually hostile work environment claim under Title VII, employees have the burned to present evidence showing that:
- Protected Class: The employee must show that they are a member of a protected class under Title VII. Sexual harassment is a form of gender discrimination prohibited by Title VII.
- Unwelcome Conduct: The conduct or behavior at issue must be unwelcome. This means that the employee did not solicit or invite the behavior and subjectively perceives it as undesirable or offensive.
- Sexually Harassing Conduct: The conduct must be of a sexual nature or related to the employee’s sex. This can include verbal harassment (such as sexual comments, jokes, or propositions), physical harassment (such as unwanted touching, groping, grabbing, or advances), or visual harassment (such as displaying sexually explicit materials such as pornography).
- Severe or Pervasive: The unwelcome conduct must be severe or pervasive enough to create a hostile or abusive work environment. This is typically determined by considering the frequency, severity, and nature of the conduct, as well as its impact on the employee’s work environment. It is important to note that this is an “or” standard, meaning that the employee must present evidence that the conduct was either severe or pervasive, but not necessarily both. In the context of a sexually hostile work environment claim under Title VII, the term “severe” refers to the seriousness or gravity of the harassment experienced by the employee, considering factors such as the nature of the conduct, impact on the employee, offensiveness, and context. On the other hand, “pervasive” refers to the persistence, continuity, or widespread nature of the harassing conduct throughout the work environment, indicating that the behavior is not isolated or sporadic but rather consistent and widespread enough to create a hostile or abusive atmosphere for the affected employee(s). The sexually hostile work environment must be sufficiently severe or pervasive to alter the terms or conditions of the employee’s employment. This means that the conduct must be sufficiently severe that it creates an abusive or hostile work environment that a reasonable person in the employee’s position would find intolerable.
Employers can be held liable for the actions of their employees, including supervisors, managers, and coworkers, if they knew or should have known about the harassment and failed to take prompt and effective remedial action to address it. However, if the harasser is a coworker and not a supervisor, the employer may have a defense if it can demonstrate that it took reasonable steps to prevent, and promptly correct harassment and that the employee unreasonably failed to take advantage of available preventive or corrective opportunities.
Sherry Norris worked in the shipping department for Sharon Coating, LLC (“Sharon Coating”). Mike Confer, a male co-worker, began harassing Norris on the basis of her sex. Among other things, Confer called Norris derogatory terms while at work, such as “bitch,” “c*nt,” and “whore.” These offensive names were used approximately ten times over five years. Additionally, Confer posted similar offensive remarks on Facebook. On top of that, an unknown employee posted graphic pornography of a woman directly next to Norris’s locker.
Eventually, Confer was put on a final written warning and transferred to another department. But the discipline was not immediate and had been allowed to reoccur multiple times.
Additionally, the Court recognized that other offensive conduct occurred in the environment and directed at other employees.
Clearly, the use of the derogatory terms “bitch,” “c*nt,” and “whore” as well as the posted pornography are based on gender and are inherently sexual in nature; they are all objectively and subjectively offensive and obviously unwanted by Norris. Most reasonable people that I know would tell you that using the c-word once is inherently severe especially since the vast majority of civilized people will not actually say the word at all; opting to spell it out or just refer to it as the c- word. Indeed, our employment law attorneys will not use the full word even in quotes in our blogs for fear of being black flagged by Google. Yet, the Third Circuit Court of Appeals uses the full word in the opinion as sort of an implicit acknowledgement that the c-word is not so bad.
Indeed, it directly held: “these comments—while ‘obnoxious, unprofessional, and inappropriate’ — were insufficient as a matter of law to establish severe or pervasive discrimination.” Id. at *3. The Court held that because the words were only used about twice per year on average, it was not pervasive. The Court then explained away severity by justifying that “this alleged conduct—while troubling and inappropriate—did not involve touching, threats, or propositions of sex.” Id. at *6. Certainly, if this was a race/color discrimination case that involved the repeated use of racial epithets, including another word that we will never use in full, no one would be justifying the conduct as not being so bad because there was no touching, threats, or any type of proposition.
Even worse, the Court of Appeals appeared to excuse the conduct because other employees commonly engaged in generalized harassment of coworkers other than Norris; “Norris also conceded that employees at the steel mill ‘were always stirring the pot …’ and ‘picking on’ each other,’ and that male ‘co-workers all called each other names and made comments to each other that were not directed at [Norris].’” This context suggests that co-workers were not singling out Norris in particular when they used slurs to refer to her.” Id. at *6. This almost seems to give permission to men to sexually harass woman so long as they also call other men names too.
This would be a horribly dangerous precedent – but for the fact that the United States Court of Appeals for the Third Circuit labeled the opinion “NOT PRECEDENTIAL.” Of course, that won’t stop any attorneys from citing to this case as precedent nor make Norris feel any better.
The likely truth of the matter is that the Third Circuit Court of Appeals determined that Norris was not trustworthy – and pointed out various incidences where her veracity was significantly and repeatedly called into question. Because courts cannot weigh credibility, which is to be exclusively decided by the jury, the Courts couched its decision under the guise of Norris not meeting her burden of proof. This creates a far more scary precedent for litigators.
The reason our sexual harassment lawyers selected this case to blog about is because there is precedent that employees should understand and heed – every case, not matter how good you may perceive it to be, has risk. Given the language and conduct at issue, I suspect that the employer was willing to engage in some level of settlement negotiations. From the outside looking in, we will never know if the employer or the employee was not engaging in settlement discussions reasonably – but this is a case that should have been settled.
By not settling the case, the employee, Norris, not only lost whatever money was being offered, but she also lost all vindication that settlement provides – and worse yet, she was subjected to two courts, the district court and court of appeals, tell her that her experiences were simply not that bad and that the employer acted properly.
This is a bad decision in my humble opinion, but it happens. The risk is there and very real. It’s important to note that each case is unique, and the specific elements required to establish a sexually hostile work environment claim may vary depending on the circumstances of the jurisdiction. Additionally, individuals who believe they have experienced sexual harassment in the workplace should consult with an experienced employment law attorney to understand their rights and options for recourse under Title VII.
Best Sexually Hostile Work Environment Attorney Blogs on Point:
- Can Employers Beat Race And Gender Claims By Equally Harassing Everyone?
- Why Should I Settle Strong Employment Case?
- Some Judges Will Just Get Employment Law Wrong
- Does A Coworker’s Porn Create A Sexually Hostile Working Environment Claim?
- What Is A Sexually Hostile Work Environment?
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