Sexual Harassment not that Easy to Show

Originally appeared in Labor Law Newsletter - January 2002

Employers face anxiety and risk whenever they face a sexual harassment claim. But, several recent decisions from the Seventh Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) make it more difficult for a harassment plaintiff to prevail when there is no tangible employment action.

The court’s decisions have established two general hurdles to prove claims of environmental harassment. The first is proof that the conduct has "the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment." Wolf v. Northwest Indiana Symphony Society, 250 F.3d 1136, 1143 (7th Cir. 2001). The second requires proof of conduct that is sufficiently severe or pervasive that a reasonable person would find it hostile and that the victim considers it as abusive. Murray v. Chicago Transit Authority, 252 F.3d 880, 889 (7th Cir. 2001).

In assessing severity and pervasiveness of the alleged conduct, courts look at "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance." Smith v. Sheahan, 189 F.3d 529, 533-34 (7th Cir. 1999). Recent Seventh Circuit decisions provide some help in applying the standard.

The Seventh Circuit recognizes that Title VII "do[es] not mandate admirable behavior from employers." Russell v. Board of Trustees of University of Illinois, 243 F.3d 336, 343 (7th Cir. 2001). Thus, "‘simple teasing,’ offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’" Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998). Rarely will mere offensive comments, particularly when they are few and far between, constitute a sexually hostile environment when they are not physically intimidating, threatening or sexually suggestive. For example, in Russell the Seventh Circuit found no claim when a supervisor referred to a female employee as "Grandma," commented to her that all intelligent women were unattractive, and made inappropriate comments referring to another female employee as a "bitch," "sleazy" and saying that she dressed "like a whore." A district court in the Seventh Circuit rejected a harassment claim when a supervisor, over a nine-month period, told several "blonde jokes" or made inappropriate comments about blondes to his female staff. Harris v. Moorman’s Inc., Case No. IP00-140-C-H/ G, 2001 WL 1168174 (S.D. Ind., Aug. 14, 2001). Employers prevailed on summary judgment in these cases as well:

• A supervisor who, on two occasions, told a female employee that he would like to have sexual intercourse with her 15-year old daughter. Rizzo v. Sheahan, Case No. 00C2494, 2001 WL 1117435 (7th Cir., Sept. 20, 2001).
• Over a six-month period, a law firm partner requested that his secretary show him pictures of herself wearing lingerie, commented to her about her undergarments and questioned whether she bought items at a risqué lingerie store. Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976 (7th Cir., May 11, 2000).
• A co-worker once brushed up against another male employee while standing in front of a urinal. Stewart v. General Motors Corp., Case No. 99C0628, 2001 WL 710106 (N.D. Ill., June 22, 2001).

What, then, does constitute sexual harassment? Generally, the conduct must involve unwanted, forcible contact or threat of contact, inappropriate touching, and/or lewd propositions for sex. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807-08 (7th Cir. 2000). Nevertheless, each case stands on its own facts. The longer the conduct continues and the more offensive it becomes, the more likely a judge will let a jury decide the issue. And, in that event, a jury may be much more inclined to hold an employer accountable after hearing and seeing the plaintiff testify in court.