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11th Circuit Rules that Employee Lacked Evidence of ‘Severe’ and ‘Pervasive’ Harassment in Hostile Work Environment Case

Workplace Sexual HarassmentThe hostile work environment case of one Georgia health care company employee offered a potentially novel and unique question, namely, can an employee pursue a hostile work environment case when she was not the victim of the alleged harassment and was not even present when the alleged harassment took place? In this case, the 11th Circuit Court of Appeals did not need to answer this question to rule in favor of the employer because the employee’s evidence fell short of the law’s requirement that the alleged harassment be both severe and pervasive.

The case involved a Georgia-based employee of a home health care services company. The employee’s issues began when two of her employer’s female patients made complaints to her or her subordinate that a male delivery driver employed by the company had made “inappropriate sexual comments” to them while making their deliveries. A third complaint came in from a patient’s caregiver, who reported that the driver gave her an unrequested hug once and tried to hug her again on a second occasion.

The employee took the three reports and gave them to the company’s management. The company allegedly ignored the complaints and retaliated against the employee for bringing the complaints to them. Based upon this, she launched a Title VII sexual harassment lawsuit against her employer. By ignoring the complaints of sexual harassment and retaliating against her for forwarding the complaints, the employer created a hostile work environment, the employee argued in her lawsuit.

The trial court ultimately dismissed the employee’s lawsuit, and the employee appealed. She lost her appeal as well.

There are several components an employee needs in order to succeed in a lawsuit alleging a hostile work environment. This woman’s case was somewhat unusual in that she asked the court to find the employer liable for creating a hostile work environment based not upon harassment she suffered but upon harassment that was allegedly inflicted upon three non-employees. Not only was the plaintiff not the victim, but also she was not even present when the alleged acts of sexual harassment took place.

Whether an employee can ever sustain a hostile work environment case under facts like these was a question that the 11th Circuit declined to answer in this case because it didn’t need to do so to resolve the appeal. There were other shortcomings in this employee’s case that required upholding the trial court’s order of dismissal.

In any hostile work environment case, the allegedly victimized employee must show that the pattern of sexual harassment she suffered was both “severe” and “pervasive.” If the acts of sexual harassment are infrequent or are relatively minor, that employee will likely lose her hostile work environment claim.

In this plaintiff’s case, none of the alleged acts took place at her workplace. In total, the alleged acts included one hug, one attempted hug, a handful of inappropriate, prying questions regarding the patients’ marital or dating statuses, and “staring or leering at them in a ‘lusty manner.’” This simply didn’t meet what the law demands in terms of either pervasiveness or severity. Cases in which the courts have found the existence of a hostile work environment have included workplaces where the harassment was filled with frequent, flagrant, and insulting racist remarks or a workplace that was “permeated [by] discriminatory intimidation, ridicule, and insult.” This driver’s behavior didn’t rise to that level.

The employee’s retaliation claim also lacked proper evidentiary support. To prove a retaliation case, you need evidence of a tangible adverse action like a cut in pay or a demotion. An employer’s making an employee’s job more difficult, as this plaintiff alleged, generally isn’t enough unless there are “unusual circumstances” that weren’t present in this case.

If you believe that you have suffered from sexual harassment at work, or you are an employer facing an unfounded hostile work environment claim, you should contact skilled legal counsel to represent you. The hardworking Georgia sexual harassment attorneys at Mays & Kerr have spent many years helping both employers and employees deal with sexual harassment and hostile work environment issues.

To speak with one of our lawyers about your case, call 1-877-986-5529.

More blog posts:

Sixth Circuit Upholds Ruling for Employer in Harassment Case Arising from Two Unwanted Sex-Related Texts, Atlanta Employment Attorneys Blog, Sept. 28, 2016

Federal Court in Tennessee Permits Sexual Harassment and Hostile Work Environment Claims to Move Forward, Atlanta Employment Attorneys Blog, July 28, 2014