WHAT CONSTITUTES A SEXUALLY HOSTILE WORK ENVIRONMENT
THE "GEEZ, I WAS JUST KIDDING" DEFENSE
Harvey A. Schwartz
Massachusetts Continuing Legal Education
Sexual Harassment Update
Judges would like to view sex discrimination claims as a Chinese restaurant menu. Discrimination falls into just one of several available categories listed in Column A; the method of discrimination is then selected from a choice on Column B. To prove a sexually hostile work environment claim you just choose one type of discrimination from Column A, one method of discrimination from Column B. The process of adjudication, judges would wish to believe, is just like deciding who gets what after the PuPu Platter.
Oh, if law were only as simple as choosing between General Gau's chicken and shrimp lo mein. Unfortunately - or fortunately, depending on your outlook on life - the law is not that simple. To quote Sol Linowitz, the law is not made up of cases, it is made up of situations. And of all the situations people find themselves in, being stuck in a miserable work situation ranks right down there with an unhousebroken puppy.
Employees with miserable work situations wander into our offices - or sue our clients, depending on which side of the Force we work for - every week. Sorting out the merely unpleasant work situations from the arguably illegal ones, especially when they involve what we see as a claim for being compelled to work in a sexually hostile work environment, is a much more difficult task than judges who create the Chinese restaurant system of law would have us believe. This is an important issue, however. Important not just for lawyers but for society as a whole, especially a society that is becoming increasingly overwhelmed by the whole concept of sexual harassment in the workplace. For plaintiffs' attorneys, analogies to Pandora's box and letting genies out of bottles -- not to mention to killing the goose that lays the golden eggs -- are appropriate. Is it time to fear that juries will begin looking with a skeptical eye to claims of sexually hostile work places based on allegations of conduct that "is just not that bad?"
Not necessarily. An examination of recent decisions in trial and appellate courts shows that judges are sharpening the definition of just what conduct goes beyond the pale and violates G.L. c. 151B and Title VII, and what conduct is deplorable but not quite actionable. First, however, a quick look at the bedrock cases establishing the standards for claims of hostile work environment sexual discrimination is called for. This jurisprudence does not come from the common law. It has no great historical development. While sexual harassment has undoubtedly been around long enough to have made the top ten list of Thou Shalt Nots delivered on Mt. Sinai (the one about coveting thy neighbor's wife), as far as a cause of action goes it probably did not exist when most Massachusetts lawyers passed the bar. What follows, to borrow from Stephen Hawking, is A Brief History of Sexually Hostile Work Environment Law.
What law prohibits sexually hostile work environments?
Both c. 151B and Title VII started as statutes designed to prohibit employment discrimination on the basis of sex. (Which more accurately should be "gender." It is interesting to speculate as to whether the law would have evolved differently if from the beginning the conduct were termed "gender discrimination" rather than "sex discrimination.") This prohibition of gender discrimination evolved into prohibitions of unwelcome sexual conduct in the workplace. This happened under the state statute both by legislative and judicial action and under the federal statute by administrative and judicial action.
Title VII, 42 U.S.C. § 2000e-2(a)(1) makes it an unlawful employment practice for an employer
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . .
The Massachusetts statute, c. 151B § 4(1) similarly makes it an unlawful practice for an employer
because of the . . . sex . . . of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. . . .
More specifically, c. 151B § 4(16A) makes it an unlawful practice "for an employer, personally or through its agents, to sexually harass any employee."
Sexual harassment is defined in the Massachusetts statute in c. 151B, § 1(18) as:
... sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.
Also, c. 214, § 1C, gives residents of the Commonwealth the right to be "free from sexual harassment, as defined in c. 151B above.
As will be discussed, this distinction between Title VII, which broadly prohibits discrimination "on account of sex" and leaves it to the courts and the Equal Employment Opportunity Commission to fill in the blanks, and c. 151B, which specifically defines and prohibits "sexual harassment," opens the door to yet another great divide between Massachusetts and federal protections against employment discrimination on the scale of the divergence between the Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441, 646 N.E.2d 111 (1995), burden of proof standard and the St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 2749 (1993), federal standard.
First, however, some groundwork is necessary. The Supreme Judicial Court and the U.S. Supreme Court interpreted this statutory language to prohibit what has come to be termed "sexually hostile work environments." In College-Town, Division of Interco, Inc. v. Mass. Comm'n Against Discrimination, 400 Mass. 156, 162, 508 N.E.2d 587 (1987), the Supreme Judicial Court recognized that sexual harassment can constitute sex discrimination in violation of c. 151B. The court said that to be actionable, the alleged harassment must be "sufficiently pervasive to alter the conditions of [the victim's] employment."
The federal equivalent of College-Town in this regard is Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986), in which the Supreme Court recognized that sexual harassment is a form of sex-based discrimination. There, the Court said Title VII's prohibition against discrimination in the "'terms, conditions, or privileges of employment' evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a hostile or abusive environment." The Court said this language "is not limited to 'economic' or 'tangible' discrimination" but also prohibits being compelled to work in a workplace permeated with "discriminatory intimidation, ridicule, and insult," 477 U.S. at 65, 106 S.Ct., at 2405. The Court concluded that when this conduct is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," id., at 67, 106 S.Ct., at 2405 (internal brackets and quotation marks omitted), Title VII is violated.
Hostile work environment claims in the succeeding ten years have built on those two themes, that the law is violated when the workplace is:
Is it "sexual" harassment or "gender discrimination?"
The dilemma of the equal opportunity harasser
Courts are now struggling with the question of whether the sexually hostile work place violates the employment discrimination statutes if the environment is equally offensive to men as it is to women. In short, where is the gender-based discrimination if everybody is a victim? This issue comes up in two recent same-sex hostile environment cases, one an SJC decision, the other from the Supreme Court.
In Melnychenko v. 84 Lumber Company, 424 Mass. 285, 676 N.E.2d 45 (1997), the SJC found that sexual harassment is not limited to conduct of a supervisor aimed at a subordinate of the opposite sex, nor is it limited to same sex conduct only where the harasser is homosexual. The male plaintiff had worked for the defendant lumber yard for two weeks when his male supervisor started to harass him and two other men. He grabbed all three of them by their genitals and fondled their buttocks. He squeezed their chests, rubbed them in areas of the body commonly thought private, and touched them "everywhere." He exposed himself to the men on at least three occasions and asked them to give him a "blow job." He told the plaintiff that if he did not give him a "blow job," he could start looking for other work. He also told other store employees that he and the plaintiff were engaging in sex. On several occasions the supervisor bear hugged the men from behind and pretended to be having anal intercourse with them. He told other employees that he had been having sex with the plaintiff, and one day he announced over the store public address system that the plaintiff had given him a "blow job.'" One day, when the plaintiff was suffering from hemorrhoids, the supervisor announced over the store public address system that the plaintiff "had been fucked too hard" on the previous evening. Another store employee frequently joined with the supervisor in this conduct. He also grabbed, squeezed and rubbed private areas of their bodies. The trial judge found that these actions "were not true romantic overtures to the plaintiffs, and that they were not inspired by lust or sexual desire. [The supervisor] did not wish to engage in serious sexual relationships with any of them. In some cases, I find that [the supervisor] intended his actions to constitute nothing more than 'horse play.' On other occasions, however, I find that [the supervisor] was physically violent and sadistic, that he intended to degrade and humiliate the plaintiffs, and that he acted purely out of malevolence and spite; he knew that his actions bothered the plaintiffs greatly, and in several cases he behaved as if he derived pleasure from the plaintiffs' discomfort."
The SJC found this conduct to violate c. 151B § 4(16A), which makes it an unlawful practice for an employer to sexually harass an employee, as defined in c. 151B § 1(18). The court found that c. 151B differs from Title VII on this point because "the [Massachusetts] Legislature specifically defined sexual harassment and, at the same time, codified the prohibition against it. . . . There is no parallel Federal statutory language." The Court noted that,
Verbal or physical conduct of a sexual nature, even if it does not include 'sexual advances' or 'requests for sexual favors,' comes within the statutory definition of sexual harassment. Thus, sexual harassment as defined in § 1(18) is by legislative direction a form of sexual discrimination. Contrary to the dissent's view, nowhere is discrimination because of a victim's sex made an essential element of a sexual harassment claim in Massachusetts.
Keep that last sentence in mind when comparing the SJC's treatment of same sex cases with the Supreme Court's.
The Supreme Court addressed the same issue in Oncale v. Sundowner Offshore Services, Incorporated, 118 S.Ct. 998 (1998). The plaintiff worked on an offshore oil platform and was treated in a manner not much different from the plaintiff in Melnychenko, although more severe and physically invasive. The Court of Appeals had dismissed his Tile VII claim, stating that the law did not apply in any way to conduct between people of the same sex. In a carefully restricted opinion the Supreme Court said that there are some sets of facts to which Title VII could apply and the lower courts were wrong in dismissing the case outright. "Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group," the Court said. The Court even noted that "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discrimination ... because of ... sex.'"
These two cases, although they reached basically the same result, portend a great divide between Massachusetts and federal interpretations of their workplace discrimination statutes, a divide that will become most apparent in regard to hostile work place claims. Under Title VII, the Supreme Court requires that the bad acts be motivated by gender bias. "Sex," as applied by the Supreme Court in interpreting Title VII, means "gender." Title VII, under this interpretation, would not apply to the equal opportunity harasser. A work place filled with sexual profanity and even physical conduct would not violate Title VII if the bad acts were directed at both men and women.
The Supreme Judicial Court interprets the Massachusetts statute differently. "Sex," the SJC says, means "sexuality," what it labels "conduct of a sexual nature," not just gender. Nowhere in Melnychenko is there any hint that the plaintiff must prove that men were subjected to this brutality while women were not. The dissenting justices' suggestion that c. 151B is limited to gender discrimination was rejected. The bad acts found to violate the statute were "sexual" acts, touching of private parts, simulating intercourse, conduct of a sexual nature. Gender discrimination was not a factor. The SJC's statement that "nowhere is discrimination because of a victim's sex made an essential element of a sexual harassment claim in Massachusetts" must be contrasted with the Supreme Court's declaration that "[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 'discrimination ... because of ... sex.'"
The significance of these two cases is that it should be expected that hostile work environment claims will be much easier to prove under Massachusetts law than under federal law. In Massachusetts, the plaintiff must prove that the work place was infused with offensive sexual conduct or words. The plaintiff need not show this conduct was motivated by any gender bias or animosity toward one sex. If Oncale continues to be a basis for interpretation of Title VII, that statute will be limited to instances of gender discrimination, of harassment motivated by gender bias. In short, the equal opportunity offensive work place, where men and women are equally grabbed and humiliated, will be prohibited by Massachusetts law but protected by federal law.
These recent developments make this difficult-to-define concept of how much and what constitutes an unlawful sexually hostile work environment even fuzzier. Perhaps an examination of the specific facts of some cases will help to clarify the application of these standards.
So where does the line get drawn?
Two concepts are at the root of the fuzziness in just what constitutes an illegally hostile work place:
Fundamental to the analysis of whether hostile conduct is actionable is the notion that the law does not prohibit all hostile work places - if only that were so - but only those that are "sexually" hostile. For example, in Cody v. Sutar d/b/a Copley Square Associates, 6 Mass.L.Rptr. 457, 1997 WL 109563 (Mass.Super.) 1997, Judge Lauriat allowed summary judgment for the employer because even though the alleged work place conduct was hostile and offensive, it "was not sufficiently sexual under the circumstances."
As to the quantum of bad conduct necessary to cross the line into illegality, courts have shied away from any firm standards, purporting to leave this fact-based determination to a jury, yet not hesitating to declare in some cases that the evidence is insufficient for the jury to make that assessment. We'll address this issue of what facts fall on what side of the line first.
The seminal Massachusetts hostile environment case, strangely enough, involved a sexually hostile environment created by a landlord for his tenant. The case is cited as the standard, however. In Gnerre v. Massachusetts Commission Against Discrimination, 402 Mass. 502, 524 N.E.2d 84 (1988), the SJC said a landlord violated c. 151B § 4(6)'s prohibition against sexual harassment. His conduct included the following: He asked the female tenant "How many times did you get laid this week?" When he came to collect the rent he pointed to the fly of his trousers and said, "I got a big sausage, you want?" When the landlord entered her apartment to fix a hole in the wall he suggested, "Well, you can get a picture of a naked man there right over your bed--you can get a nice picture." When the tenant was leaving the apartment building in the company of her then six-year old son the landlord yelled to her across the street, "Nice pair of tits, honey." The court said it examined this conduct from the view of a reasonable person in the plaintiff's position. In a significant statement for hostile work environment claims, the court specifically rejected the defendant's "suggestion that we impose, as a matter of law, a quantitative requirement on the incidents of harassment that will constitute actionable sex discrimination." The Court said,
We reject imposing any numerosity requirement for two reasons. First, a legal standard that requires a plaintiff to prove a minimum number of incidents of harassment does not recognize the variety of conduct that may constitute sexual harassment. Further, it does not recognize that different conduct, depending on its nature, can more or less quickly render a tenancy less desirable. Very threatening behavior or sexual harassment involving physical contact, for instance, might render a tenancy less desirable after even one incident, whereas offensive sexual speech, depending on its nature, might not make a tenancy less desirable to a reasonable person in the plaintiff's position if the comments are made infrequently. However, the more offensive the comments the fewer incidents of harassment may be required to demonstrate the objective reasonableness of the claim that the value of the tenancy was diminished for a plaintiff. A numerosity requirement would not allow the commission or a court to balance the severe or the threatening nature of the conduct against its frequency of occurrence in determining whether the plaintiff's tenancy was rendered less desirable. Second, a numerosity requirement would unfairly penalize the plaintiff who took affirmative steps to avoid further harassment by avoiding the defendant altogether and would benefit the plaintiff who did not. Therefore, we decline to impose an arbitrary numerosity requirement as a matter of law.
Similarly, the court also rejected the defendant's "suggestion that only sexual harassment involving specific demands for sexual favors is actionable harassment . . . ." Gnerre has stood up well over the past ten years and continues to be cited frequently as a standard for sexually hostile environment claims.
The SJC has continued to decline to establish specific requirements for these claims. Recent hostile work place cases that can be used as benchmarks for the quantum of evidence necessary to state a claim include the following:
•Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848 (1st Cir. 1998). Evidence was sufficient for jury to find a sexually hostile work environment. The employer primarily employed young, attractive women, known to customers as "Occidental Gals," and instructed them to be especially cordial to officials of its major customer. The plaintiff said her manager told her she should be nice to an important customer and "keep him satisfied." Not surprisingly, the customer began to make unwelcome approaches and suggestive comments to plaintiff. He invited her out to dinner. He asked her to visit his office after hours and on Friday evenings. He anonymously sent her flowers for her birthday and included a sexually explicit card. The plaintiff complained to her boss about this behavior and he responded by stressing that the man was an important client, but assured her that he would deal with the problem. When the customer called the plaintiff and told her he would pick her up to take her to a motel she complained again to her boss, who defended the customer and said she should respond to the customer "as a woman." Shortly after that incident she was fired. The First Circuit concluded that "[u]nder the hostile work environment theory of sex discrimination, the jury could have reasonably found that [the employer] had established a working environment hostile to women."
A real estate salesperson employed as an independent contractor (who thus brought a claim under c. 214, § 1C instead of c. 151B) claimed that a fellow employee routinely referred to her as old, ugly, and/or fat; on about twelve occasions made derogatory comments about her hair, including "can't you do something about your hair" and said she had no class and would win "an ugly contest." Judge Lauriat granted the employer summary judgment, saying the conduct "complained of here falls well short of that required to make out a prima facie case of hostile workplace sexual harassment. It is undisputed that . . . the comments to Cody did not involve any vulgarity. Nor did [the] comments, as required by the statute, constitute 'sexual advances.' While the court does not accept [defendant's] argument that such comments are gender-neutral, nor does it find that these comments were sufficiently hostile or sexualized as to constitute sexual harassment."
Other cases to check include Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988)(Female medical resident stated claim for hostile work environment); Lattimore v. Polaroid Corporation, 99 F.3d 456 (1st Cir. 1996); and Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993).
The conduct must be bad, but the plaintiff can't be
Besides meeting the quantitative (how much bad stuff happened) standard and the qualitative standard (how bad was the stuff), the plaintiff must prove that the atmosphere was unwelcome and offensive to her personally.
What can be gleaned from these and earlier hostile work environment cases is that to survive summary judgment a claim must:
Perhaps the most that can be said about what constitutes a sexually hostile work environment is that it is like the definition of obscenity, you can't say what it is but you know it when you see it. That definition should be enough to satisfy plaintiffs, who can be comfortable with assuming that a jury, too, will know it when they see it. The problem with such a fuzzy standard is whether, in reviewing motions for summary judgment, the courts will let the jury see it at all.