Can you be sexually harassed behind your back?

It might be obvi­ous, but it seems a bit dif­fi­cult to win on a claim for sex­u­al harass­ment where all of the harass­ment occurs behind your back (and by “behind your back”, I mean sit­u­a­tions where the harass­ing behav­ior occurs when the com­plain­ing employ­ee is not phys­i­cal­ly present to expe­ri­ence or hear what is hap­pen­ing).

The Fourth Cir­cuit Court of Appeals addressed this issue in Pueschel v. Peters, 577 F.3d 558 (4th Cir. 2009), in a unan­i­mous deci­sion writ­ten by Judge Roger Gre­go­ry in which Judges M. Blane Michael and Robert Bruce King joined.

The Fourth Cir­cuit didn’t have much dif­fi­cul­ty reach­ing the con­clu­sion that, for any claim alleg­ing a hos­tile work envi­ron­ment (includ­ing sex­u­al harass­ment), you can’t suc­ceed if all of the mis­con­duct about which you com­plain occurred at work when you were not at work.

Twen­ty Eight Years of Lit­i­ga­tion!!!

This case grows out of an incred­i­bly long his­to­ry of lit­i­ga­tion (includ­ing sev­er­al dif­fer­ent law­suits and appeals (some of which were suc­cess­ful)) filed by Ms. Pueschel against her employ­er, the Fed­er­al Avi­a­tion Admin­is­tra­tion (“FAA”). The lit­i­ga­tion start­ed in 1981 and end­ed with this Fourth Cir­cuit deci­sion in 2009 (I am not kid­ding, and I am not sure this deci­sion marks the end of all of her lit­i­ga­tion).

I’ll fast-for­ward past the first decade or so of lit­i­ga­tion. In 1994, Ms. Pueschel went on leave with­out pay (“LWOP”) from her job at the FAA after she claimed to suf­fer a “stress-relat­ed episode at work”. She claimed that this required her to leave work per­ma­nent­ly. She remained on LWOP until she was ter­mi­nat­ed in 1999 because of her inabil­i­ty to work, and she nev­er returned to work at the FAA.

Ms. Pueschel filed a num­ber of dis­crim­i­na­tion admin­is­tra­tive charges between 1997 and 1999, and the key alle­ga­tion that I will focus on in this arti­cle was that she was sub­ject­ed to a hos­tile work envi­ron­ment in 1997 and 1998 (keep­ing in mind that she was not at work after 1994). Ms. Pueschel claimed that the hos­tile work envi­ron­ment was based on her gen­der and dis­abil­i­ty, and based on the fact that she had filed charges of dis­crim­i­na­tion against the FAA. These charges led to a law­suit in which the tri­al judge grant­ed the FAA’s motion for sum­ma­ry judg­ment on Ms. Pueschel’s hos­tile work envi­ron­ment claim under Title VII of the Civ­il Rights of 1964.

So the Fourth Cir­cuit had to decide whether Ms. Pueschel had a viable hos­tile work envi­ron­ment claim based on her gen­der and her dis­abil­i­ty and her pri­or charges of dis­crim­i­na­tion.

I described Ms. Pueschel’s claim at the begin­ning of this arti­cle as “sex­u­al harass­ment” for the sake of con­ve­nience to describe the issue, but her hos­tile work envi­ron­ment claim was more com­pli­cat­ed than that. She alleged that co-work­ers were mak­ing ugly, pro­fane, and degrad­ing com­ments about her, and the com­ments were not “sex­u­al” in a con­ven­tion­al sense. The insults were that she was a “fuck­ing bitch”, “noth­ing but a bitch”, a “use­less bitch”, and oth­er sim­i­lar state­ments.

Fourth Circuit’s Analy­sis

The first impor­tant thing about the Fourth Circuit’s analy­sis is that it assumed that a hos­tile work envi­ron­ment claim can be pred­i­cat­ed on any pro­tect­ed char­ac­ter­is­tic under the employ­ment dis­crim­i­na­tion laws. It described the basic require­ments (pri­ma facie case) of a hos­tile work envi­ron­ment claim, and said the plain­tiff must demon­strate that the alleged con­duct:

  • was unwel­come;
  • result­ed because of her gen­der, dis­abil­i­ty, or oth­er pro­tect­ed activ­i­ty;
  • was “suf­fi­cient­ly severe or per­va­sive” to alter the con­di­tions of her employ­ment; and
  • was imputable to her employ­er.

(my empha­sis is added). Some courts have ques­tioned whether hos­tile work envi­ron­ment claims can be based on any char­ac­ter­is­tics oth­er than gen­der and race. But the Fourth Circuit’s lan­guage in ele­ment 2 above (“based on gen­der, dis­abil­i­ty, or oth­er pro­tect­ed activ­i­ty”) clear­ly rec­og­nizes that a hos­tile work envi­ron­ment may be moti­vat­ed by most or all of the pro­tect­ed char­ac­ter­is­tics under the employ­ment dis­crim­i­na­tion laws. That means that hos­tile work envi­ron­ment claims in prin­ci­ple may be based on gen­der (con­ven­tion­al sex­u­al harass­ment), race (racist com­ments), dis­abil­i­ty, age, nation­al ori­gin, and reli­gion.

The sec­ond impor­tant thing about the Fourth Circuit’s analy­sis is that it concluded–perhaps stat­ing the obvious–that Ms. Pueschel could not pre­vail on her hos­tile work envi­ron­ment claim because she left her FAA employ­ment per­ma­nent­ly start­ing in 1994, and all of the abu­sive con­duct occurred at work in 1997 and 1998 after her employ­ment end­ed. In oth­er words, she was not present at work, so the insult­ing state­ments at work could not cre­ate a hos­tile or abu­sive work envi­ron­ment for her.

Lin­ger­ing Issues

The hold­ing in this case does not mean that the plain­tiff-employ­ee must always be phys­i­cal­ly present while offen­sive work­place behav­ior is occur­ring. Abu­sive con­duct may be rel­e­vant and admis­si­ble in var­i­ous set­tings where the plain­tiff is not phys­i­cal­ly present, but these cir­cum­stances will gen­er­al­ly require that the plain­tiff still be employed at the time of the events. Here are the sce­nar­ios where the con­duct may still sup­port a hos­tile work envi­ron­ment claim (and I’ll use sex­u­al harass­ment con­duct as the exam­ple):

  • Boss makes sex­u­al­ly offen­sive state­ments about female employ­ee (plain­tiff) while plain­tiff is not present, but anoth­er employ­ee lat­er tells the plain­tiff about the state­ments. Courts don’t have a lot of trou­ble con­clud­ing that this sort of after-the-fact knowl­edge about the harass­ing state­ments con­tributes to a hos­tile work envi­ron­ment.
  • Boss makes sex­u­al­ly offen­sive state­ments about plain­tiff, no one ever tells plain­tiff, and boss denies ever mak­ing oth­er sex­u­al­ly offen­sive remarks direct­ly to the plain­tiff. Under those cir­cum­stances, even though the boss’s state­ments did not con­tribute to a hos­tile work envi­ron­ment for the plain­tiff, the state­ments out­side of the pres­ence of the plain­tiff are like­ly to be admis­si­ble on the dis­put­ed issue of whether the boss ever made sex­u­al­ly offen­sive state­ments direct­ly to the plain­tiff.
  • Boss sex­u­al­ly harass­es oth­er women (oth­er than the plain­tiff) out­side the pres­ence of the plain­tiff. That harass­ment may be admis­si­ble in plaintiff’s case under 2 cir­cum­stances: (a) plain­tiff claims to have been told about that harass­ment while she was still work­ing for employ­er, and she cred­i­bly claims her after-the-fact knowl­edge con­tributed to the hos­tile work envi­ron­ment, and (b) even if plain­tiff did not learn about it after the fact, the harass­ment of oth­er women may be admis­si­ble on the dis­put­ed issue of whether the boss sex­u­al­ly harassed the plain­tiff.
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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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