the situation
During the interview of a prospective new employee, one of your male
supervisors comments on a female employee’s attractiveness. After the
employee is hired, the same supervisor repeatedly and frequently
comments on the employee’s appearance and attire. The supervisor then
begins calling her a Jezebel. She quits, citing the problem with the
supervisor as the reason. Could you be facing a claim of hostile work
environment?
the ruling
Probably–at least enough of a case to get the employee past a motion
for summary judgment. McKinley v. The Salvation Army, Civil Action No.
7:15cv00166 (W.D. Va. June 14, 2016).
Lisa McKinley was employed by the Salvation Army for only about eight
months as a case worker. During her interview for the job, Michael
Moffitt, the director of one of the homeless shelters run by The
Salvation Army, made a number of comments about her appearance,
including how attractive she was and questioning her how she would
handle men that may come on to her. After she got the job, Moffitt
continued to make comments about how attractive she was, how great she
looked, and how much he loved her perfume or attire. McKinley told him
to stop making these comments, but he persisted and on a daily basis.
Not only did Moffitt make these sort of comments, but essentially
suggesting that the two have a relationship (even though he was
married). At some point, he started calling her Jezebel—to the point
that other employees and clients started calling her that as well. One
morning, after Moffitt called her Jezebel again and told her he was
going to have to fire her, McKinley asked him why he was calling her
that and he told her that it was because a Jezebel creates havoc and is a
whore-type person that puts spells on people.
McKinley ended up resigning, despite the Salvation Army’s discipline
of Moffitt and implementation of a corrective action plan whereby she
would not have to work with Moffitt. Ultimately, McKinley filed a
lawsuit, alleging that she was constructively discharged and that she
was subjected to a hostile work environment in violation of Title VII.
The court found that the Salvation Army was entitled to summary
judgment on McKinley’s claim that she was constructively discharged,
particularly in light of the fact that the Salvation Army took prompt
remedial action. But the court did find that McKinley had sufficiently
made a case of hostile work environment to go to a jury. The Salvation
Army argued that the harassment was not so severe or pervasive so as to
later the conditions of her employment and create an abusive or hostile
atmosphere. The court disagreed, explaining that harassment does not
have to involve touching or be physically threatening in order to be
actionable. The constant comments from Moffitt, some of which painted
McKinley in a sexually demeaning light, could support a finding that the
conduct was sufficiently pervasive or severe and that there were facts
indicating that McKinley had sufficiently reported the problematic
conduct.
the point
Here, the Salvation Army took swift action when McKinley told them
she was resigning because of the conduct. But the bottom line was that
there was at least some evidence that she had complained about the
conduct previously, yet nothing was done. Even where sexual harassment
does not involve any touching, if it is persistent and sufficiently
offensive, employers must still pay attention and take action when they
first become aware to avoid this type of claim.
Originally posted to Virginia Employer Law Blog, by Elaine Inman Hogan on July 13, 2016.