SEXUAL HARASSMENT WITHOUT “SEX”

THE EFFECT OF SEX-NEUTRAL CONDUCT ON HOSTILE WORK ENVIRONMENT ACTIONS

The terms “sexual harassment” and “hostile work environment” together can invoke a great deal of images and scenarios in the mind of the listener:  graphic language and gestures, sexual advances, propositions, leering, touching, groping – the list can go on indefinitely.  However, a work environment does not necessary need to include acts or statements that are explicitly sexual in nature to be considered hostile under Title VII.  Often, such an environment can be created through acts that courts have termed “facially sex-neutral.”  Essentially, this term applies to abusive conduct that, on its own, would not normally be considered to be based on sex, but taken in the “totality of the circumstances, is indicative of a sexually hostile atmosphere.

Take, for example, the case of Moll v. Telesector Resources Group, Inc., recently decided by the Second Circuit Court of Appeals.  The facts in that case state that the Plaintiff, Cindy Moll, was subjected to fairly frequent offensive sexual behavior from her supervisor for a number of years.  Ms. Moll’s supervisor left her a number of inappropriate notes, one of which suggested he “thought of her” while showering, and would try to persuade her to come to his hotel room while the two were on a business trip.  This was the entirety of her supervisor’s expressly sexual conduct.  However, a number of other actions were taken against Ms. Moll that were not sexual in nature.

For example, Ms. Moll’s supervisor only allowed her to communicate with him in person, and would not respond to or accept communication by phone or email.  Ms. Moll was also told that she would not be eligible for a promotion during a “company-wide” promotion freeze, although two male co-workers were promoted during this time.  Furthermore, Ms. Moll was placed on a performance improvement plan, was told she could no longer work from home despite male employees being allowed to do so, and was denied vacation time that male employees were granted.  This type of treatment even extended into extracurricular work activities, with Ms. Moll being excluded from a number of work-sponsored social events.

Ms. Moll filed suit in the Western District of New York, bringing a cause of action for hostile work environment on the basis of sex.  The Defendant moved for summary judgment, arguing that the statute of limitations had ran for all  sexually hostile actions taken against Ms. Moll.  The Defendant further argued that, although the incidents involving the lack of promotion, the performance improvement plan, the denied vacation, and the exclusion from social events, had occurred before the statute of limitations expired, those actions were not sexual in nature, and therefore weren’t actionable.  The District Court agreed and found for the Defendant.

The Second Circuit, however, reversed, holding that summary judgment was improper. The Second Circuit found that in the totality of Ms. Moll’s circumstances, the sex-neutral actions she had been subjected to could have been viewed as contributing to a sexually hostile work environment by a finder of fact:

To decide whether the threshold has been reached, courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse. . . Facially sex-neutral incidents may be included . . . among the “totality of the circumstances” that courts consider in any hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on sex.

This implications of the Second Circuit’s holding could have far reaching effects for people who are experiencing a hostile work environment, but the majority of the harassment is not sexual in nature.  This is a scenario we hear from our potential clients quite often.  While this case does not hold any authority in Kentucky state courts, or in the Sixth Circuit, it may be highly persuasive in a hostile work environment action.

If you feel you’ve been subjected to a hostile work environment, you should seek legal counsel immediately to learn more about the options available to you.

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