Sexual Harassment Not Limited to Male Against Female

November 13, 2007

Summary
One of four articles in the Winter 2007 edition of the Employment Law Briefing newsletter, this article focuses on the fact that, in Kampmier v. Emeritus Corp., 472 F.3d 930 (7th Cir. 2006), the Seventh Circuit considered the case of a licensed practical nurse who claimed that her openly lesbian supervisor sexually harassed her. THe other articles in the newsletter are: 2. Has the Social Security Administration’s “No Match” Letter Met its Match? 3. Be wary when using tests to screen job applicants 4. Court clarifies employees’ FMLA rights

In Kampmier v. Emeritus Corp., 472 F.3d 930 (7th Cir. 2006), the Seventh Circuit considered the case of a licensed practical nurse who claimed that her openly lesbian supervisor sexually harassed her.

Case thrown out
An assisted-living facility hired a nurse but fired her after six months for failing to show up. Nearly a year later, she alleged that the facility's executive director had sexually harassed her. The nurse alleged that the director, a lesbian, frequently made offensive, explicit and sexually perverse comments to her and to other women, joked about being gay, and engaged in unwanted physical contact.

The trial court threw out the case without a trial on grounds that the material facts were undisputed and the facility was entitled to judgment as a matter of law.

The nurse appealed to the Seventh Circuit, which reversed the trial court's decision, finding that there were genuine issues of material fact precluding summary judgment in the employer's favor. It noted that, to establish a prima facie case for sexual harassment, plaintiffs must show that:

  1. They were subjected to unwelcome harassment,
  2. The harassment was based on their sex,
  3. The harassment was sufficiently severe or pervasive so as to alter employment conditions and create a hostile or abusive atmosphere, and
  4. A basis existed for employer liability.

The court examined each of these issues.

Unwelcome harassment
The nurse testified that the director's obscene comments and constant physical contact made her uncomfortable and that she had complained about the behavior on three occasions to higher management. Her direct supervisor confirmed this.

The facility countered that the nurse had engaged in sexual banter herself. But it submitted no evidence that she had in any way encouraged or welcomed the alleged behavior. So the Seventh Circuit concluded that the nurse had raised a genuine issue of material fact as to whether she was subjected to unwelcome harassment and was entitled to a trial.

Based on sex
The facility next argued that the director's harassment wasn't because of the nurse's sex, because the director harassed both sexes - making her an "equal opportunity harasser." But the Seventh Circuit found that the alleged harassment was far more severe and prevalent than what the male employees endured.

Because the nurse alleged that the director constantly referred to female employees, made comments about their "boobs," and told the women that she could turn any woman gay, the court held that, at the very least, the nurse had raised a genuine issue of material fact as to whether the alleged harassment was because of her sex.

An abusive atmosphere
To prove that her work environment was hostile, the nurse had to demonstrate that it was both objectively and subjectively offensive. She estimated that, during her employment, the director hugged her 50 to 60 times, jumped in her lap 10 times and touched her buttocks 30 times. Based on the sustained physical contact - combined with the sexually explicit remarks - the court held that a jury could reasonably find that the comments and physical contact were objectively offensive.

The issue of whether the nurse subjectively found the conduct offensive was more closely contested. She had allowed the director's lover to baby-sit her daughter in the director's home, she had visited the director in the hospital after she had surgery and had given her a card, and she had at least once medically assisted the director's mother.

The Seventh Circuit found that this evidence seemed to belie the nurse's claim that she felt harassed by the director. Nonetheless, the court held that her repeated complaints and objections regarding the harassment were sufficient to raise a genuine issue of material fact.

Basis for employer liability
Finally, the nurse had to prove that a basis for employer liability existed. An employer may be vicariously liable to a victimized employee for an actionable hostile environment created by a supervisor with authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. This defense consists of two necessary elements:

  1. The employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior.
  2. The employee unreasonably failed to take advantage of any employer-provided preventive or corrective opportunities or to otherwise avoid harm.

Here, because the nurse was fired for failure to show up and didn't allege that her firing was connected to the harassment, the facility was allowed to raise an affirmative defense that it had exercised reasonable care to prevent and correct the sexually harassing behavior. But the nurse testified that, despite her complaints about the harassment to three different managers, the facility didn't discipline the director. And the nurse's supervisor testified that the director's actions "negatively impacted the workplace," but the regional operations director said she "did not want to hear about it."

The court held that this evidence was sufficient to create a genuine issue of material fact as to whether the facility had exercised reasonable care to prevent and correct the director's behavior. So the court concluded that the nurse had presented enough evidence for a jury to decide her sexual harassment claim.

Importance of training supervisors
In case employers had any doubts, this case once again demonstrates that sexual harassment is not limited to males against females. Savvy employers will train supervisors to understand that sexual harassment can take other forms, such as female against female and male against male.