By Mark R. Filipp

The following Q & A has been selected from Employment Law Answer Book, co-authored by Mark R. Filipp.

Q 4:88 What is hostile work environment sexual harassment?

Under the EEOC guidelines, unwelcome sexual conduct, requests for sexual favors, or other verbal or physical conduct of a sexual nature that “unreasonably interferes with an individual’s job performance” or creates an “intimidating, hostile, or offensive working environment” will support a claim of hostile work environment sexual harassment. It is not necessary in a hostile work environment claim, as it is with a quid pro quo claim, that the conduct be a term or condition of employment, express or implied, or that submission to or rejection of such conduct be the basis of any employment decision affecting the complaint. Rather, the hostile environment itself is sufficient for purposes of maintaining the claim.

Furthermore, it is not necessary that the complainant suffer severe psychological injury as a result of the complained conduct. The threshold of personal injury is relatively low, and as long as sufficient evidence is introduced to support a finding of an “abusive” environment, any measurable effect on the complainant will be sufficient to support the claim. However, not all bawdy language and comments by co-workers will rise to the level of creating a sufficiently severe and pervasive environment from which a hostile work claim can be maintained under Title VII. For example, in McGullam v. Cedar Graphics, Inc. [609 F.3d 70 (2d Cir. 2010)], a co-worker’s reference to women as “chickies” and remark to the plaintiff that a woman friend of his was not worth the trip to her house unless they could have sexual relations, although demeaning, were not sufficiently severe or pervasive to maintain a claim of hostile work environment under Title VII. Similarly, in Overly v. Keybank National Ass’n [662 F.3d 856 (7th Cir. 2011)], the court held that a supervisor’s occasional condescending gender-based remarks referring to a female employee as “cutie” and having a “pretty face” are not sufficiently severe or pervasive to rise to the level of a hostile work environment. In Prater v. Lucky You, Inc. [2014 WL 6982663 (S.D. Ohio Dec. 9, 2014)], the court held, among other things, that crass comments of a co-worker during a four-minute conversation, although very lewd, were not sufficiently severe or pervasive to constitute sexual harassment. However, if the conduct at issue is not sufficiently severe or pervasive, no claim for sexual harassment can be maintained. For example, in Velazquez-Perez v. Developers Diversified Realty Corp. [2014 WL 2142517 (1st Cir. 2014)], the court held that a female co-worker that sent a male co-worker anonymous gifts and a single statement that she wanted to have a romantic relationship was not sufficiently pervasive or severe to create a hostile work environment as required by Title VII.

In O’Leary v. Accretive Health, Inc. [657 F.3d 625 (7th Cir. 2011)], the court held that a female co-worker’s boast of sexual exploits with co-workers at a dinner party could not reasonably be considered harassment, such that a male co-worker’s complaints regarding the comments was not protected activity to support a claim of Title VII retaliation.

This text originally appeared in Employment Law Answer Book, Ninth Edition (Wolters Kluwer, 2016). Reprinted with permission.

For further information regarding these matters, please contact Mr. Filipp at 248.619.2580 or via email.