Sexual Harassment Must Alter Terms and Conditions of Employment
 
January 1, 2000
 

Employers facing claims of sexual harassment were provided some guidance in a recent case decided en banc by the Eleventh Circuit Court of Appeals, Mendoza v. Borden, Inc. (11th Cir. 1999), in which the court by a seven to four vote set forth what it called a "baseline" of what is unlawful conduct under sexual harassment law.

Courts have repeatedly ruled that to succeed in a sexual harassment lawsuit, a plaintiff must show harassing conduct that is "severe" or "pervasive" enough to alter the terms or conditions of that person's employment. The work environment must be one that a "reasonable person" would find hostile or abusive, and the employee herself or himself must also subjectively perceive the environment to be hostile or abusive. The determination of whether conduct is "severe" or "pervasive" enough to amount to sexual harassment prohibited by law is considered in light of all the surrounding circumstances, including the frequency of the discriminatory conduct, its severity, whether the conduct is physically threatening or humiliating or a mere offensive utterance, and whether the conduct unreasonably interferes with an employee's work performance.

The Mendoza court noted that there is a "minimum level of severity or pervasiveness" necessary for conduct to be unlawful sexual harassment. In Mendoza, the court concluded that evidence that the employee's supervisor constantly followed and stared at her, made sniffing noises directed at the employee's groin, brushed against her on one occasion and commented that he was "getting fired up" on another, did not meet this "minimum level of severity or pervasiveness" and was therefore legally insufficient to support a sexual harassment claim.

The court paid special attention to the fact that the employee did not show she was physically threatened or humiliated by the conduct alleged and did not show that the conduct unreasonably interfered with her ability to perform her job. The employee also failed to show, except for the alleged following and staring, that any of the conduct was frequent. The context in which the alleged conduct occurred was also important to the court. "Given normal office interaction among employees," the court found that even the cumulative effect of the conduct described by the employee was not the type of conduct that could result in an actionable claim. Thus, although the U.S. Supreme Court ruled last year that an employee who suffers no adverse, tangible job consequences may recover if the employee is subjected to "unwelcome," "humiliating" or "threatening" conduct by a supervisor, the Eleventh Circuit in Mendoza now seems to have defined a threshold standard for employers as to what sort of conduct will fit those descriptions.

However, employers should be cautious not to evaluate or respond to alleged conduct in an employee's complaint of harassment based solely on whether the conduct meets a certain "minimum level of severity or pervasiveness" from the employer's point of view. It remains the law that to avoid liability, employers must make reasonable efforts to prevent any harassing behavior and to correct the behavior when it is reported. An employer may avoid liability if the employer can prove that it exercised reasonable care to prevent and promptly correct harassing behavior, and that the employee unreasonably failed to take advantage of preventative or corrective opportunities or to avoid harm otherwise. For that reason, it continues to be crucial for employers to have a clear, well-written, and well-disseminated antiharassment policy, which should be periodically reviewed and revised as necessary.

For more information please call Eric K. Gabrielle at 1-888-688-8500.

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