Can harassment of OTHERS help prove that a plaintiff endured a hostile work environment?

Have you ever heard of me-too evidence?

Plaintiffs in discrimination cases may attempt to introduce me-too evidence to the jury to establish that the same harasser directed the same acts of discrimination or harassment against other employees. This evidence helps demonstrate a pattern or practice of misconduct that makes their own claims of discrimination or harassment seem more likely.

In a decision I read recently, the plaintiff, a supervisor, alleged that her boss subjected her to a hostile work environment. To establish a hostile work environment claim, the plaintiff had to show that her boss subjected her to unwelcome harassment based on a protected characteristic and that it was severe or pervasive enough to affect a term, condition, or privilege of employment.

At trial, the plaintiff relied on me-too evidence over objections from the defendants, and the jury awarded her over $700,000. On appeal, the Iowa Supreme Court warned that a plaintiff cannot use me-too evidence about which she was unaware to provide that she experienced severe or pervasive harassment.

For example, at trial, the plaintiff first heard a coworker’s graphic testimony about how a supervisor harassed her and displayed photos of sex toys and phallic candles in her office. The plaintiff also first heard at trial another supervisor recounting sexual jokes by the same supervisor, which the plaintiff’s alleged harasser overheard. The trial court should not have allowed the jury to consider any of this as evidence that the plaintiff herself endured a hostile work environment.

Instead, the focus should have been on evidence of severe or pervasive harassment that the plaintiff herself experienced. The appellate court concluded that the plaintiff had failed to meet her burden of proof. She never testified that her supervisor physically threatened her or anyone else. No one touched her inappropriately, propositioned her for sex, or pressured her for romance. Instead, the jury mostly heard evidence that her boss was rude to her, gave her extra work, and favored a female coworker.

One time, the plaintiff’s supervisor made an inappropriate sexual comment to the plaintiff about her. But one bad joke or comment—even from a direct supervisor—is not enough to establish a hostile work environment. While he did make other inappropriate comments about other women in the plaintiff’s presence or about which she heard secondhand, those are considered less severe or humiliating. Otherwise, “[t]he American workplace would be a seething cauldron if workers could with impunity pepper their employer and eventually the EEOC and the courts with complaints of being offended by remarks and behaviors unrelated to the complainant except for …having overheard, or heard of, them.”

None of this was severe or pervasive enough to alter the conditions of the plaintiff’s employment.

Judgment reversed, and case dismissed.