A few days ago, I posted my article on PAR Electrical Contractors, Inc. v. Bevelle , in which the West Virginia Supreme Court ruled that a single episode involving multiple uses of the N-word could create a racially hostile work environment.
The US Court of Appeals for the Seventh Circuit just released an opinion in Berry v. Chicago Transit Authority, – F.3d –, – WL — (7th Cir. August 23, 2010), which raises the similar issue: Can a single instance of sexual harassment create a hostile work environment? And the answer was yes, depending on the circumstances.
Ms. Berry is Sexually Harassed in a Single Incident
Cynthia Berry was an employee at the Chicago Transit Authority. She was on her break and sat at a picnic style table with three male co-workers. A fourth male co-worker, Philip Carmichael, had followed her to the picnic area and ordered Ms. Berry to get up from the table. Offended by Mr. Carmichael’s “commanding tone”, Ms. Berry remained seated. Mr. Carmichael then sat down and “straddled the bench” so he was facing one of the male co-workers at the picnic table, and so that Mr. Carmichael’s back was close to Ms. Berry. The other three male co-workers got up from where they were seated at the picnic table and moved to the other end of the table. Then:
Berry says Carmichael remained where he was seated and began rubbing his back against her shoulder. She jumped up, told him not to rub himself against her, and sat down next to Hardy at the other end of the table. At this point,
Berry says, Marshall began telling her to get up from the table again. Not wanting Marshall to think he could order her around, she remained seated, but began rubbing her temples to compose herself. According to Berry, she next felt Carmichael grabbing her breasts and lifting her up from the bench. Holding her in the air, he rubbed her buttocks against the front of his body—from his chest to his penis—three times before bringing her to the ground with force. Berry landed off-balance, with only one leg on the ground, and says Carmichael then pushed her into a fence. Upset and wanting to avoid any men, she lay down in a bus for the rest of her shift.