Let’s start with what you probably know already — especially if you are an employment lawyer.
To prevail on a hostile work environment claim, a plaintiff must show that she was harassed based on some protected class. In plain English, enduring hostile behavior isn’t enough. A woman alleging a hostile work environment based on her sex must show that she endured pervasive or severe harassment based on her sex that interfered with her working conditions.
Except here’s the thing.
Not all of the bad behavior has to be sexual.
I’ll give you a recent example involving a woman who prevailed at trial on her claims of a hostile work environment based on her sex or gender. The defendant appealed the jury verdict to the Sixth Circuit Court of Appeals, arguing that the jury had improperly considered acts of harassment that had nothing to do with the plaintiff’s sex or gender.
The company reasoned that because the jury found that these actions did not adequately support a separate disparate treatment claim based on her sex/gender, the jury must have concluded that these four acts were not related to sex or gender. Accordingly, it would be “inconsistent and illogical” to also use these acts to support a hostile work environment claim.
Wrong.
Sometimes, one can infer that behavior that is facially sex-neutral is actually gender-related because of a totality of the circumstances or, as the Sixth Circuit put it, a “constellation of surrounding circumstances.” For example, the jury heard evidence that the plaintiff was the only employee asked to perform a particular test at work, the only employee prevented from performing other work-related activities, and the only one prohibited from driving the company vehicle. In isolation,
this treatment may seem unrelated to sex or gender. However, considering that the plaintiff was the only female employee in her group and the comparator evidence indicating that the men received preferential treatment, the jury could reasonably tie these actions to the plaintiff’s gender.
Standing alone, the events described above were not enough to create a hostile work environment. However, the jury also heard evidence that the plaintiff’s supervisor verbally harassed her based on her gender, and a coworker referred to her as a “bitch” or someone who was always “bitching.” The court noted that these terms are “indubitably sexually degrading and gender specific.”
This one could have gone either way. Indeed, the jury deliberated four times. But, the takeaway here is that multiple instances of overt gender/sex-based harassment coupled with other bad behavior that could be gender/sex-based, depending on the circumstances, can be sufficient to create a hostile work environment.