Was the boss “merely crude”, or was he sexually harassing her?

Sex­u­al harass­ment claims fre­quent­ly require judges and juries to dis­tin­guish between “mere­ly crude” behav­ior, which doesn’t vio­late the employee’s rights, and “sex­u­al harass­ment”, which does. The Fourth Cir­cuit Court of Appeals addressed that issue in EEOC v. Fair­brook Med­ical Clin­ic, PA, 609 F.3d 320 (4th Cir. 2010) (opin­ion at Fourth Circuit’s site), and didn’t have a lot of trou­ble con­clud­ing that the con­duct in issue could rea­son­ably be viewed by a jury as sex­u­al harass­ment, rul­ing in favor of the employ­ee. One of the key issues was whether the con­duct was “severe or per­va­sive” enough to con­sti­tute a “hos­tile work envi­ron­ment”.  The unan­i­mous opin­ion was writ­ten Judge J. Harvie Wilkin­son III, joined by Judges Andre M. Davis and C. Arlen Beam (from the Eighth Cir­cuit).

Doc­tor on Doc­tor Harass­ment at Fair­brook Med­ical Clin­ic

Stethoscope Dr. John Kessel was the own­er of Fair­brook Med­ical Clin­ic in South Car­oli­na, and was accused by a for­mer female doc­tor at the clin­ic, Dr. Deb­o­rah Waechter, of sex­u­al­ly harass­ing her. Dr. Kessel was Dr. Waechter’s super­vi­sor. Dr. Waechter worked for him for 3 years and quit, alleged­ly over a broad range of sex­u­al­ly explic­it state­ments made dur­ing most of those 3 years (I’ll dis­cuss the specifics below).

Dr. Waechter’s Law­suit

Dr. Waechter then filed a charge of dis­crim­i­na­tion with the EEOC, alleg­ing that Dr. Kessel’s behav­ior cre­at­ed a “hos­tile work envi­ron­ment”, and the EEOC then filed suit on behalf of Dr. Waechter against Dr. Kessel’s clin­ic under Title VII of the Civ­il Rights Act of 1964.

After dis­cov­ery was con­duct­ed. Fair­brook Med­ical Clin­ic filed a motion for sum­ma­ry judg­ment, and the fed­er­al tri­al judge grant­ed it. The tri­al judge rea­soned that the offen­sive con­duct was “not par­tic­u­lar­ly fre­quent,” most­ly involved “the type of crude jokes that do not run afoul of Title VII,” did not cause Dr. Waechter to miss work or feel “severe psy­cho­log­i­cal stress,” and did not include inap­pro­pri­ate touch­ing or phys­i­cal threats.

The Fourth Cir­cuit reversed and sent the case back for tri­al, con­clud­ing that the EEOC on behalf of Dr. Waechter had pre­sent­ed evi­dence from which a jury could have rea­son­ably con­clud­ed that Dr. Kessel’s behav­ior was severe or per­va­sive enough to cre­ate a hos­tile work envi­ron­ment.

Issues on Appeal

The cen­tral issues for the Fourth Cir­cuit to address on appeal were whether Dr. Kessel’s con­duct (a) was based on Dr. Waechter’s gen­der and (b) was “suf­fi­cient­ly severe or per­va­sive to alter the con­di­tions of her employ­ment and cre­ate an abu­sive work envi­ron­ment.”

Fair­brook Med­ical Clin­ic made two famil­iar argu­ments that arise fre­quent­ly in sex­u­al harass­ment claims: (a) Kr. Kessel was just a “rude & crude” kind of guy who wasn’t real­ly mak­ing express­ly sex­u­al com­ments aimed at Dr. Waechter’s gen­der, and (b) even if the behav­ior was express­ly sex­u­al,  Dr. Kessel’s com­ments weren’t fre­quent and severe enough to cre­ate a hos­tile work envi­ron­ment.

Dr. Kessel’s Com­ments Were  “Based On” Dr. Waechter’s Gen­der

Since sex­u­al harass­ment law requires that the behav­ior be based on the plaintiff’s gen­der, some­times these claims fail because the com­ments con­sist of pro­fan­i­ty or crude behav­ior that doesn’t real­ly tar­get someone’s gen­der. For exam­ple, state­ments or jokes that include pro­fan­i­ty are some­times not viewed as sex­u­al harass­ment by the courts, because they are not “sex­u­al com­ments” tar­get­ing someone’s gen­der.

But the Fourth Cir­cuit “eas­i­ly dis­missed” Dr. Kessel’s char­ac­ter­i­za­tion of his behav­ior. The Fourth Cir­cuit made a num­ber of obser­va­tions about Dr. Kessel’s con­duct that helped define his behav­ior as ‘sex­u­al” and tar­get­ed at Dr. Waechter’s gen­der:

  • Dr. Kessel used “sex-spe­cif­ic and deroga­to­ry terms” intend­ed to “demean women”;
  • He used “cunt” and “slut” to refer to women at the clin­ic;
  • He talked about “female body parts” in graph­ic terms;
  • Sev­er­al times he made “explic­it or implic­it pro­pos­als of sex­u­al activ­i­ty”;
  • He asked Dr. Waechter if she “had a bet­ter libido while she was pump­ing her breasts” (she had had her sec­ond child and was breast feed­ing);
  • He said he thought she was prob­a­bly a “wild thing” in bed; and
  • He asked to “view and pump her breasts”.

So the Fourth Cir­cuit con­clud­ed that a rea­son­able jury could have con­clud­ed that Dr. Kessel’s com­ments were “based on sex” and that their inti­mate nature was intend­ed make women in his employ feel “acute­ly embar­rassed and uncom­fort­able”.

Dr. Kessel’s Com­ments Were “Severe or Per­va­sive”

So the next issue was whether Dr. Kessel’s com­ments were “severe or per­va­sive” enough to cre­ate a hos­tile work envi­ron­ment. That is an impor­tant require­ment, and many sex­u­al harass­ment claims fail on it. For exam­ple, even if the defendant’s con­duct was clear­ly “based on sex”, it may not be action­able if it fair­ly infre­quent, or if it is not ter­ri­bly severe.

The Courts have said that “not all work­place con­duct that may be described as “harass­ment” is severe enough to con­sti­tute a hos­tile work envi­ron­ment.  The con­duct must be both (1) “objec­tive­ly hos­tile or abu­sive”, and (2) the vic­tim must “sub­jec­tive­ly per­ceive it as such”. Because Fair­brook Med­ical Clin­ic did not dis­pute the fact that Dr. Waechter sub­jec­tive­ly per­ceived the con­duct as abu­sive (the sec­ond require­ment), the Fourth Cir­cuit focused on the first require­ment: where the con­duct was “objec­tive­ly hos­tile or abu­sive”.

On this “objec­tive prong” (“objec­tive­ly hos­tile or abu­sive”), the Fourth Cir­cuit not­ed there is no “math­e­mat­i­cal­ly pre­cise test” for fig­ur­ing out whether the con­duct was “objec­tive­ly hos­tile or abu­sive”, and you look at the harass­ment from the “per­spec­tive of a rea­son­able per­son in the plaintiff’s posi­tion, con­sid­er­ing all the cir­cum­stances”.

The “cir­cum­stances” include the “fre­quen­cy of the dis­crim­i­na­to­ry con­duct”; its sever­i­ty; whether it is phys­i­cal­ly threat­en­ing or humil­i­at­ing, or a mere­ly offen­sive utter­ance; and whether it unrea­son­able inter­feres with an employee’s work per­for­mance.” The Court should con­sid­er the “social con­text in which par­tic­u­lar behav­ior occurs and is expe­ri­enced by its tar­get”. The courts should also keep in mind that Title VII does not impose a “gen­er­al civil­i­ty code”, and “mere­ly crude behav­ior” does not con­sti­tute sex­u­al harass­ment.

On that line between “sex­u­al harass­ment” and “mere­ly crude behav­ior,” the Fourth Cir­cuit said there is a dif­fer­ence between “gen­er­al­ized” state­ments that “pol­lute the work envi­ron­ment” and “per­son­al gen­der-based remarks” that “sin­gle out indi­vid­u­als for ridicule”. Activ­i­ties like “sim­ple teas­ing, off­hand com­ments, and off-col­or jokes, while often regret­table, do not cross the line into action­able mis­con­duct”.

Fair­brook Med­ical Clin­ic argued that Dr. Kessel’s behav­ior was not “severe”, that Kessel was mere­ly “crude”, oth­er employ­ees and patients told off-col­or jokes, employ­ees in a med­ical set­ting deal with “human bod­ies” every day, and Dr. Waechter some­times engaged in off-col­or com­ments.

The Fourth Cir­cuit con­clud­ed that Dr. Kessel’s behav­ior was “objec­tive­ly hos­tile or abu­sive”. Dr. Kessel’s remarks were “high­ly per­son­al”, such as a broad range of com­ments about the size of Dr. Waechter’s breasts, want­i­ng to see and pump her breasts, ask­ing about her sex dri­ve, spec­u­lat­ing that she was a “wild thing” in bed, and com­ments about his gen­i­tals and his wife’s gen­i­tals.

The Fourth Cir­cuit reject­ed the asser­tion that the con­text of a med­ical clin­ic some­how negates the “sever­i­ty” of Dr. Kessel’s behav­ior.

The Fourth Cir­cuit also reject­ed the argu­ment that Dr. Kessel’s con­duct was “not par­tic­u­lar­ly fre­quent”. Dr. Kessel’s con­duct was “at least a reg­u­lar occur­rence”; he told “foul jokes” 2 or 3 times a month; Dr. Kessel dis­played an “image of his penis” 25–30 times with 5 to 10 descrip­tions of his penis as “Mr. Hap­py”; and he made com­ments about Dr. Waechter’s breasts at least 1–2 times a week from Decem­ber 2005 to Jan­u­ary 2006.

Under those cir­cum­stances, a “rea­son­able per­son” in Dr. Waechter’s posi­tion” could have con­clud­ed that the “harass­ment had become a per­sis­tent fea­ture of her work envi­ron­ment.”

The Fourth Cir­cuit also reject­ed the argu­ment that the harass­ment did not cause Dr. Waechter to miss work and did not adverse­ly affect her per­for­mance (Dr. Kessel acknowl­edged that she was a very good doc­tor).


The Fourth Circuit’s deci­sion is a good resource for look­ing at that impre­cise line between “mere­ly crude behav­ior” and action­able sex­u­al harass­ment.

The fed­er­al tri­al judge con­clud­ed that there was sim­ply no way a rea­son­able jury could have con­clud­ed this was unlaw­ful sex­u­al harass­ment, so he dis­missed the case. The Fourth Cir­cuit reversed, and the case will go back to the tri­al judge to head towards tri­al.

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Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
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