The Legal Significance Of A Single Incident Of Serious Sexual Harassment
In order to establish a sexual harassment claim, an employee must show that the sexually harassing behavior was sufficiently severe or pervasive to alter the terms and conditions of employment. Although often ignored by courts when dismissing sexual harassment cases, sexual harassment is actionable if it is either sufficiently severe or pervasive. Thus, as explained by the U.S. Seventh Circuit of Appeals in Hostetler v. Quality Dining, Inc., 218 F.3d 798 (7th Cir. 2000), sexual harassment “need not be severe and pervasive to impose liability; one or the other will do.” Courts, such as the U.S. Ninth Circuit Court of Appeals in Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001), have determined that the “required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.” In other words, as the severity of the behavior increases, the pervasiveness of the behavior decreases in importance. The Ninth Circuit’s decision in Craig v. M & O Agencies, Inc., 496 F.3d 1047 (9th Cir. 2007) illustrates the principle that when an employee is subjected to a serious single incident of harassment, the importance of showing the pervasiveness of other acts of harassment is reduced in proportion to the severity of the single incident.
In Craig, Eileen Craig (Craig) alleged that she was sexually harassed by her supervisor. Over the course of several months, the supervisor made comments to Craig about her legs and how she should wear shorter skirts. The harassment escalated when the supervisor asked Craig out for drinks after work. At the restaurant, the supervisor asked Craig “if she had ever thought of making love to him” and told her that he would like to take off the blue dress she was wearing. The supervisor also invited Craig back to his house and told her that “it’s not a matter of if but when” something would happen between them. Later, Craig excused herself to go to the restroom. When she exited the stall in the restroom, the supervisor approached her, grabbed her arms, “gave her an open-mouthed kiss and stuck his tongue in her mouth.” The kiss ended when someone walked into the restroom. The supervisor exited the restroom and Craig remained in the restroom for 5 minutes to compose herself, after which she picked up her purse and left the restaurant. Approximately one week later, the supervisor asked Craig out for another drink, which she declined. The following week, the supervisor told Craig that he “wanted” her and asked if she would like to make love to him. About one week later, Craig reported the supervisor’s conduct to the company.
The trial court dismissed Craig’s sexual harassment claim. A threshold issue on appeal was whether the supervisor’s actions were sufficiently severe or pervasive to create a hostile work environment. In attempting to support the trial court’s dismissal, the employer cited cases involving “shocking behavior” by harassers and argued that a harasser’s behavior must be more egregious than the supervisor’s to sustain a sexual harassment claim. The Ninth Circuit disagreed. The appellate court observed that courts have “found liability in situations where the conduct was much less onerous” than the supervisor’s and establishing a sexual harassment claim does not require proof of “shocking behavior.” The appellate court found that the supervisor’s behavior fell somewhere between mere isolated incidents, which do not create a hostile work environment, and serious or pervasive harassment, which does create a hostile work environment. In reversing the trial court’s dismissal and reinstating Craig’s sexual harassment claim, the Ninth Circuit reasoned that the extremely serious nature of the bathroom encounter, when combined with the supervisor’s other comments and propositions, were sufficient to create a hostile work environment.
Craig illustrates that courts consider harassing conduct involving an element of physical invasion, such as touching of intimate body party and kissing, to be severe. The severity of the behavior in Craig was heighted by the supervisor’s entry into the restroom to carry out his intimidating and threatening behavior. Because of the extremely serious single incident of harassment, Craig’s need to show that the other sexually harassing behavior was pervasive decreased in proportion to severity of the bathroom incident. Without the severity of the bathroom incident, it is unlikely that the Ninth Circuit would have found that Craig was subjected to sexually harassing behavior that was sufficiently pervasive to create a hostile or abusive work environment.
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