Decision Dismissing Dispatcher’s Sexual Harassment Claim Shows How Much Discrimination Law Has Changed

Owing to a series of decisions from the United States Supreme Court over the last six years, it is much more difficult today to bring a successful harassment lawsuit than it has been in recent memory. A case involving an Indiana dispatcher is an illustration of exactly how far the law has evolved.

Lucinda Nichols worked for the City of Mishawaka, Indiana, as a police dispatcher from late 2002 to May 2003. Nichols brought a Title VII lawsuit against the City, alleging that she was subject to hostile work environment sexual harassment.

Nichols alleged the following acts of harassment: (1) Tracie Bowerman, a female dispatcher assigned to train Nichols, told her that her success as a dispatcher depended upon her willingness to have sex with police officers; (2) Bowerman subjected Nichols to discussions about an apparent sexual relationship between Bowerman and the communications director; (3) Bowerman wrote “Cindy sucks K-9 dicks” on her street atlas; (4) after Nichols complained, Bowerman wrote “Fuck U more today than yesterday. I mean it”; (5) pornographic movies were shown in the dispatch center during her shift; (6) Nichols had to listen to Bowerman describe “perfect blow job” technique, discuss proper handling of an erect penis, and describe the size of the movie actor’s penis; (7) Bowerman and a male dispatcher refused Nichols’ requests that they stop watching (and discussing) the pornography during work; (8) Bowerman and the male dispatcher massaged and rubbed each other in a sexually suggestive way in Nichols’ presence; (9) after she complained (a) her shift assignments were changed repeatedly, (b) others refused to work with and train her, (c) Bowerman physically assaulted her, (d) another dispatcher threw books around the dispatch center, (e) a police officer told her she should have kept her mouth shut; (10) Bowerman and a male dispatcher sabotaged her work by failing to assist her and notify her of emergency situations; (11) co-employees greeted her with evil looks and snide comments; (12) she was denied overtime that other dispatchers received even though the others had cleared only one channel; and (13) when she and others tried to complain about her harassment, nothing was done.

A federal court found that “this evidence would not allow a reasonable trier of fact to find that it is more likely than not that anything other than the first incident was directed at Nichols on account of her sex. Although the comment about providing police officers with sexual favors to assure advancement is distasteful, ‘occasional vulgar banter, tinged with sexual innuendo of coarse or boorish workers’ is not sufficient to amount to hostile environment sexual harassment.”

The Court was not even persuaded by the fact that the City itself viewed Bowerman’s activity as sexual harassment, and referred her to an employee assistance program because Bowerman had violated Mishawaka’s sexual harassment policy and had engaged in inappropriate workplace behavior. As the Court put it, “were the issue closer, the City’s statements might well create a genuine issue of material fact. The City, though, doesn’t have the authority to decide the meaning of federal law for a jury. Even with the City’s determination that Bowerman violated sexual harassment policy, this record would not allow a finding that the harassment of Nichols was based on her sex.”

Nichols v. Mishawaka Police Department, 2005 WL 2031084 (N.D.Ind. 2005).

This article appears in the October 2005 issue