Owing chiefly to several decisions of the United States Supreme Court, it has become extremely difficult for employees to successfully bring sexual harassment lawsuits. Recent estimates are that employees lose approximately 95% of sexual harassment claims brought in federal court. These results are largely the product of case law that requires harassing conduct to be “severe and pervasive,” and not “simple teasing, offhand comments, and isolated incidents.”
A case involving a corrections officer working for the Southwest Virginia Regional Jail Authority illustrates the degree of conduct necessary to survive an employer’s motion to dismiss a sexual harassment complaint. The case involved Vicky Horner, who contended that “female employees are singled out for intimidating and harassing conduct and are treated differently than male employees in disciplinary actions and termination.” The employer moved to dismiss Horner’s lawsuit, arguing that the conduct she alleged, even if true, did not amount to sexual harassment.
The Court found that “the actions and comments alleged by Horner were sufficiently severe to remove them from the realm of simple teasing or offhand comments. The comments complained of by Horner are not limited to the single comment by a major, which is the focus of the State’s brief, namely that he was going to replace females with males because they were intellectually superior. Rather, there are numerous inappropriate comments, which arguably are much more egregious than the previously mentioned comment. Without providing a comprehensive list, some of the more heinous alleged conduct includes Horner’s allegations that a lieutenant told her that her ‘boobs were too small,’ she was ‘hot as balls, [his] balls,’ he talked of having sex with ugly women and stated he would lay them face down so he did not have to look at them while ‘getting off.’ According to Horner, there were many other sexual comments. Also, Horner claims that a corrections officer made many derogatory sexual comments, both directly and indirectly toward her, and referred to women as ‘bitches.’ Also, Horner alleges that a sergeant told her, ‘you and Green are the only one[s] on the shift worth f___ing.’”
The Court noted that while Horner did not indicate she was physically threatened or intimidated, she did state “that the conduct she complained of often occurred in front of coworkers or inmates and, as a result, caused her a great deal of humiliation. It is not clear what effect the alleged discriminatory conduct had on Horner’s work performance, other than her stating that the rumors and tumultuous relationship with her supervisors caused a lack of respect from the inmates and caused her to be shifted to a different post more frequently than normal. I find that Horner has produced sufficient evidence to meet her burden because a reasonable person could have found the work environment was hostile.”
Horner v. Southwest Virginia Regional Jail Authority, 2010 WL 597148 (W.D. Va. 2010).
This article appears in the May 2010 issue