Isolated sex-talk does not save untimely hostile work environment claim

The Supreme Court in 2002 opened the door a little wider for sexual harassment plaintiffs when it decided that, even if much of the hostile work environment took place outside the statute of limitations, a case is timely brought if the hostile work environment continued into the 300-day window from which the victim must file an EEOC charge. The question now is what kind of "timely" sexual harassment is enough to make the otherwise untimely events actionable.

The case is McGullam v. Cedar Graphics, Inc., decided on June 15. McGullam worked in the production department, where the men were pigs and said a number of sexist and offensive comments about her. She was then transferred (at her request) to the estimating department in the other side of the building. Surrounded by new co-workers, the harassment died down in the estimating department, except that McGullam had to put up with a male co-worker who talked about other women (he called them "chickies" and talked about sexual "sleep-overs") with male colleagues. After McGullam was fired, she brought an EEOC charge alleging she endured an hostile work environment.

This is how McGullam describes the guy in the estimating department:

While working in the estimating department, I was away from the majority of the harassment, hostility and aggravation. However, all comments of a sexual and derogatory nature did not cease entirely. On the opposite side of my cubic[le]wall was a salesman . . . [who] carried on numerous lengthy conversations with male buddies and made frequent comments about women such as referring to them as “chickies[.”] He also remarked that “[i]f it wasn’t going to be a sleep-over, she wasn’t worth the trip[,”] regarding a woman friend that he was involved with (translating to: she’s only worth the trip if I’ll be getting sex). This was a thoroughly demeaning comment regarding women.

The EEOC charge is a precursor to a federal Title VII lawsuit. In New York, the EEOC charge has to be filed within 300 days of the discriminatory act. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court said that since sexual harassment usually takes place over time, the case is timely (and all the sexual harassment is actionable for damages) if at least some of the harassment took place within the 300-day period.

All the harassment in the production department is long behind us, so the offensive statements in the estimating department are the only way to salvage the sexual harassment lawsuit (only those statements took place in the 300-day period). But they are not enough. First, the Court of Appeals (Jacobs, Kearse and Calabresi) says that "the chickies comments are too trivial to contribute to a Title VII hostile work environment claim. They were not obscene or lewd, or even sexually suggestive."

That leaves us with the "sleep-over" comments. But, drawing from the Supreme Court's Morgan precedent, these comments are not sufficiently related to the sexist comments in the production department, since they were uttered by someone in the estimating department. In addition, unlike the sex-talk in the production department, the sleep-over comments were not about McGullam but someone else and therefore had no relation to the hostile work environment in the production department. The sleep-over comment also took place nearly a year after McGullam left the production department.

Since the chickies and sleep-over statements are not sufficiently offensive or related to the sex-talk in the production department, the only way McGullam can win the case is if the sleep-over talk by itself creates an hostile work environment. It does not, because it is not severe or pervasive enough to alter the conditions of her employment. What this means for McGullam is that there is nothing left for her to sue over. Summary judgment is affirmed.