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).

Conclusion

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.

Drew M. Capuder
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