In a ruling that implores trial courts to take an expansive view of the evidence on a summary judgment motion, the Court of Appeals has reinstated a hostile work environment case in which substantial harassment was not motivated by sexual desire but a general hostility toward women.
The case is Kaytor v. Electric Boat Corp., decided on June 29. This case provides a good primer on the state of sexual harassment law in the Second Circuit, with scholarly discussion of recent cases and a broad view of what constitutes relevant evidence in these cases. The Court (Kearse, Hall and Cabranes) also provides a ringing endorsement against summary judgment in these cases, reminding us that the totality of the evidence, and not piecemeal consideration of isolated incidents, governs the inquiry. The jury is not required to believe all the employer's evidence, and the district court need not trust "innocent explanations for innocent strands of evidence."
The hostile work environment in this case seems extensive, making you wonder how summary judgment was granted in the first place. Kaytor's supervisor, McCarthy, made sexually suggestive comments about her body, her clothing and the way she smelled, and he leered at her. He made inappropriate comments when Kaytor went to a gynecologist appointment, stating, among other things, that the doctor was going where men would love to go. McCarthy insulted Kaytor's body when she spurned his advances, and on many occasions he actually said he'd like to see her dead and in a coffin. He also threatened to kill Kaytor if she complained about the harassment. These death comments, along with a sexually-suggestive gift, make this case particularly notable.
Ladies and gentlemen, this all amounts to a hostile work environment. The Circuit reminds us that sexual harassment exists even without explicitly sexual conduct, and that hostility toward women also proves these claims. Sex-neutral actions may contribute to the hostile environment under Title VII if the same individual "engaged in multiple acts of harassment, some overtly sexual and some not." Summarizing this approach, the Second Circuit says, "so long as there is some evidentiary basis for inferring that facially sex-neutral incidents were motivated by the plaintiff's gender, the ultimate question of whether such abuse was 'because of' the plaintiff's gender ... is a question of fact for the factfinder."
This case goes to trial on the sexual harassment claim. First, the district court should not have ignored how McCarthy demeaned other women in the office besides Kaytor. In addition, while threats to kill and choke plaintiff were facially gender-neutral, the jury may find McCarthy said this because of her gender, since he seems to have only directed these threats toward women. In any event, the Court notes that the jury could find the threatening comments were gender-motivated even if McCarthy did say them to men and women alike. Moreover, while Kaytor could not say exactly how many times McCarthy threatened her, it is enough for her to say at trial that "there were many such instances." Whether that recollection is good enough for the jury is a credibility question and not dispositive on a summary judgment motion. And, although the district court said that the harassment was too sporadic since it took place over the course of "a number of years," this was another example of viewing the evidence most favorably to the employer, a no-no on motions for summary judgment. Looking at the evidence from a different angle, the harassment was far more numerous when we take into account the quite frequent (more than 15) threats, body leering and frequent comments about Kaytor's body, including her genitalia.
Every sexual harassment case has some evidence that you never saw before. In this case, in addition to the death threats, it's the pussy willow gift that McCarthy gave to Kaytor. Of course, management argued that this plant was a gender-neutral gift. But the Court of Appeals sees this stunt through the eyes of a jury that has mulled over all the other evidence in the case. McCarthy had made other inappropriate comments about plaintiff's genitalia, and even a junior high school student would know how the pussy willow gift fits into the case. At this stage of the case, we may assume that the pussy willow gift was another form of sexual harassment.