Conduct That Is “Juvenile And Boorish” Does Not Amount To A Hostile Work Environment

Not a month goes by without the release of several new court decisions emphasizing the changed rules under which federal courts evaluate sexual harassment cases. Owing largely to two Supreme Court decisions, courts now routinely reject sexual harassment lawsuits that ten years ago might well have been the basis for holding employers liable for considerable damages.

A good example is the lawsuit brought by Tina Dodd, a police officer with the City of Greenville, South Carolina. Dodd sued the City, alleging that since 1996, other officers intentionally held down the transmitter buttons on their walkie-talkies so as to make her unable to transmit over her walkie-talkie. More specifically, she alleged that one night two detectives made hang-up phone calls to her cellular phone. When she answered the phone on one occasion, one of the detectives said, “You bitch, I hate you, I’m going to get you, watch out,” before disconnecting. He then called back, saying such things as “I’m going to get you, I hate you, bitch, you lazy bitch, watch out I’m going to get you” before Dodd disconnected the call. Around 3:00 a.m., Dodd received a third telephone call with someone breathing heavily into the telephone.

Dodd reported the telephone calls to Captain Willie Harper. According to Dodd, Captain Harper instructed her not to file a misconduct complaint. Dodd filed a complaint anyway, and the detectives received three- and five-day suspensions for their conduct.

Dodd then sued the City, alleging that she was the victim of sexual harassment. A federal court dismissed the lawsuit.

The Court found that, even assuming everything Dodd claimed was true, she had failed to state a claim for hostile work environment. To state a hostile work environment claim, a plaintiff must allege that: (1) She experienced unwelcome harassment; (2) the harassment was based on her gender; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer. The Court observed that “in evaluating whether harassment is severe and pervasive so as to make it actionable under Title VII, the court must examine the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”

The Court concluded that Dodd’s claims failed this test: “The improper conduct alleged by Dodd, while juvenile and boorish, does not rise to the level of creating a hostile work environment.”

Dodd v. City of Greenville, 2007 WL 30333 (D.S.C. 2007).

Note: Though the result in the Dodd case was predictable, two other decisions cited by the Court in reaching its decision show how much the law of sexual harassment has changed. In one case, Singleton v. Dept. of Correctional Education, 115 Fed. Appx. 119 (4th Cir. 2004), a supervisor told a subordinate she should be spanked every day, constantly stared at her breasts and told her how attractive she was, and installed a security camera pointed at her desk so he could watch her. Though the conduct occurred approximately four times per week for over a year, the Court concluded the behavior “was not sufficiently severe and pervasive as to alter the conditions of her employment.” In the second case, Hartsell v. Duplex Products, Inc., 123 F.3d 766 (4th Cir. 1997), a co-worker stated: “Why don’t you go home and fetch your husband’s slippers like a good little wife, that’s exactly what my wife is going to do for me”; other co-workers told the employee that they would make her “cry like a baby” as they had every other female employee; and another co-worker referred to the employee as his slave. The Court found that “not all sexual harassment that is directed at an individual because of his or her sex is actionable. Title VII does not attempt to purge the workplace of vulgarity.”

The article appears in our April 2007 issue.