Sexual
Harassment
To
prevail on a Title VII hostile work environment claim, the
plaintiff must establish four elements: (1) unwelcome conduct,
(2) based on the plaintiff’s gender, (3) sufficiently
pervasive or severe to alter the conditions of employment
and to create a hostile work environment, and (4) some basis
for imputing liability to the employer. Matvia v. Bald Head
Island Management, 259 F.3d 261, 266 (4th Cir. 2001). The
defendant argues that because Glosser was not profane, so
to speak, there is no actionable sexual harassment. That
is just not the law in this area. While plaintiff indeed
has the burden of setting forth actions based on her sex,
each action is not independently judged. Instead, the courts
look at a constellation of factors, including, among others:
· The frequency of the discriminatory conduct; whether
it is physically threatening or humiliating, or a mere offensive
utterance;
·
The severity of the discriminatory conduct;
·
Whether the discriminatory conduct is physically threatening
or humiliating or a mere offensive utterance; and
·
Whether the discriminatory conduct unreasonably interferes
with an employee’s work performance.
Harris
v. Forklift Sys., 510 U.S. 17, 23, 114 S.Ct. 367, 371 (1993).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct.
367 (1993), the Supreme Court directly addressed the definition
of a hostile work environment. 510 U.S. at 21-22, 114 S.Ct.
at 371-372. The Court then explained that, while it was
not setting forth a “mathematically precise test,”
one could determine whether an environment is “hostile”
or “abusive” by looking at the totality of the
circumstances surrounding the conduct. 510 U.S. at 22-23,
114 S.Ct. at 371.
In analyzing whether the unwelcome conduct was so severe
or pervasive as to affect a term, condition, or privilege
of employment, the court must use a “totality-of-the-circumstances
test,” by which the court considers all of the harassment
by all of perpetrators combined together. For example, in
Williams v. General Motors Corp., 187 F.3d 553 (6th Cir.
1999), the Sixth Circuit Court of Appeals reversed a summary
judgment in favor of the employer, finding that the district
court inappropriately failed to examine the allegedly harassing
conduct under the “totality-of-the-circumstances test:”
Bench
Opinion
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