Court rejects hostile work environment claim

There was a time when sexual harassment, while commonplace, was not a well-known phrase, and it was not until 1986 that the Supreme Court determined that such harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. In that case, Meritor, the Court said sexual harassment is actionable if it is severe or pervasive such that it alters the work environment for the worse. That is a steep standard, and many cases fail because the court decide that the harassment does not rise to that level. This is one of those cases.

The case is Estevez v. Berkeley College, a summary order issued on November 10. I argued the appeal and will try to be neutral here. 

The three plaintiffs claimed that (1) a female co-worker had an unusual obsession with their physical appearance and frequently made comments about the same, sometimes with an ominous tone; (2) a male co-worker often said there was "too much estrogen" in the office and he found an isolated location for perform his work, away from the women; and (3) a supervisor made comments suggesting his bias against working mothers. The district court said this is not enough for a Title VII case, and the Court of Appeals (Walker, Sullivan and Vyskocil [D.J.]) affirms. The case is over. Here is how the Court sees it:

Even if we assumed for the sake of argument that the conduct a reasonable person might consider severe or pervasive can evolve over time, as amicus curiae suggests, the conduct alleged here — primarily consisting of a female co-worker staring and frequently making backhanded compliments about the Employees’ clothes, bodies, and appearances, a male co-worker frequently commenting that there was too much estrogen in the room, and a male supervisor making  a  single  comment  arguably  evidencing  a  bias  against  working mothers — is not sufficiently severe or pervasive to support a hostile-work-environment claim.

An amicus brief, as noted, argued that the definition of sexual harassment can change over time to make additional offensive conduct actionable. Certainly the MeToo movement has reconceptualized our understanding of sexual harassment. The Court accepted that proposition as true for purpose of this appeal but still found the plaintiffs cannot proceed under Title VII. I argued that the Court of Appeals in 1998 said that close cases involving sexual harassment are for the jury as they represent the community and they are in a better position than judges to know when sexist behavior crosses the line and becomes actionable sex discrimination, compelling the Court to reverse summary judgment. That case is Gallagher v. Delaney. The Court in this case did not mention that argument in sustaining summary judgment.

In granting summary judgment, the district court said that this kind of workplace misconduct may have been "distasteful" but that the "estrogen" comment "is the sort of conduct ordinarily greeted with eyerolls or snappy comebacks." Plaintiffs argued on appeal that this observation improperly excused the bad behavior and put the onus on the plaintiffs to deal with it. But the Court of Appeals "find[s] nothing improper in the district court's remark."