In coworker harassment case, 4th Cir. discusses "because of sex"; constructive knowledge from failure to provide adequate complaint procedure
In Ocheltree v. Scollon Prods., Inc. (4th Cir. July 18, 2003), following a jury verdict for the plaintiff, the Fourth Circuit rejected the employer’s contention that verbal conduct consisting of frequent and explicit sexual gestures and conversation that could be characterized as (quite extreme and explicit) “guy talk” or “locker room talk” was not actionable because, while of a sexual nature, it was not “because of sex.”
The employer’s argument was that the talk was not directed at the female plaintiff and could have been heard by anyone, and that it was equally offensive to some men.
The court found that the jury could reasonably have concluded that the men engaged in his conduct largely because they enjoyed watching and laughing at the reactions of the plaintiff — the only woman in the shop. It also noted that the talk, by portraying women as sexually subordinate to men, was also calculated to disturb the plaintiff.
On the issue of constructive knowledge–whether, in applying the negligence standard for liability, the employer should be deemed to have known about the harassment — the court found the Company had constructive knowledge because it failed to provide adequate complaint procedures.
Armchair quarterbacking (20-20 hindsight): While both of these are interesting legal issues, which attracted amicus briefs, including by the EEOC, perhaps the most notable feature of this case is that it should never have been tried or appealed. The verdict was reduced to the $50,000 cap, indicating the settlement value of the case had a relatively low maximum at the outset. The evidence quite clearly involved severe and pervasive conduct by many individuals. The two issues decided on the appeal, while perhaps worth a shot on summary judgment, were not strong enough to justify the costs in attorney’s fees of trial and appeal.
The end result– a small employer that probably could have settled in EEOC mediation for well under $50,000 and paid modest fees to its own attorneys ended up with a $50,000 judgment against it, in addition to paying its own and the plaintiff’s fees and costs.
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