7th Circuit States the Elements of a Sexual Harassment Claim

On December 26, 2018, the 7th Circuit affirmed an order of summary judgment for the defendant-employer in a sexual harassment lawsuit in which the plaintiff-former employee alleged that she was subjected to unlawful sexual harassment, sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII").  Swyear v. Fare Foods Corporation, No. 18-2108 (7th Cir. 12/26/2018).  The sexual harassment claim was based on offensive nicknames used by employees for co-workers and customers, but not for the plaintiff, and a business trip incident with a co-worker involving inappropriate behavior by the co-worker.  The plaintiff reported the incident to management and subsequently was given two negative performance reviews and fired.  In its decision, the 7th Circuit discussed the elements and legal standards for sexual harassment claims.

A sexual harassment claim under Title VII requires a plaintiff to demonstrate that: (1) her work environment was objectively and subjectively offensive; (2) the harassment she complained of was based on her gender; (3) the conduct was so severe or pervasive as to alter the conditions of employment and create a hostile or abusive working environment; and (4) there is a basis for employer liability.  A successful hostile work environment claim based on sexual harassment does not require sexual conduct, and may be established by showing that the work environment was sexist.  For instance, a showing of an anti-female animus is sufficient to prevail in a hostile work environment claim.  There must be evidence that the work environment was severe or pervasive, and that the conduct was both objectively and subjectively offensive.  In determining whether a work environment is objectively offensive, courts consider the severity of the conduct, its frequency, whether it is merely offensive as opposed to physically threatening or humiliating, and whether it unreasonably interfered with an employee's work performance.  The U.S. Supreme Court has set the legal standard for sexual harassment--that the discrimination just be only so severe or pervasive as to affect the terms and conditions of employment.  Courts are to consider all of the facts and circumstances in their totality in determining whether they constitute a hostile or abusive work environment. 

In this case, the district court found and the 7th Circuit agreed that the evidence did not establish a hostile or abusive work environment for purposes of a Title VII sexual harassment claim.  The offensive nicknames and disrespectful language were not directed toward the plaintiff, only toward other employees and customers.  The plaintiff was not given an offensive nickname herself.  The business trip episode was a single incident which, in isolation and unconnected to any pattern of sexual harassment, was not sufficiently severe to create an actionable hostile work environment.  On the other hand, the 7th Circuit clearly stated that workplace sexual assaults committed by coworkers are sufficient to create a hostile or abusive work environment.  In this case, however, the work environment as a whole was not sufficiently severe or pervasive to constitute a hostile work environment.