Colleague’s Conduct Was Not Sexual Harassment

By Michael E. Wilbur May 5, 2021
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An employee whose co-worker repeatedly touched her over several months was not subjected to sexual harassment when the behavior was not severe or pervasive, according to the 8th U.S. Circuit Court of Appeals. Moreover, even if the conduct was objectively severe or pervasive, the plaintiff resigned soon after informing her employer of the offending behavior, depriving it of the chance to address the issue.

The plaintiff worked for Whirlpool, making refrigerators. She once saw a co-worker touch another employee, which she found to be "kind of creepy." Shortly thereafter, the co-worker started touching the plaintiff on a regular basis.

According to the plaintiff, the co-worker would appear behind her, put a hand on her shoulder and caress her, or he would talk quietly to her while invading her personal space. She asked him to stop, and he stopped for a while, but he then allegedly resumed his behavior and continued touching her regularly on her shoulder, arm or back. On one occasion, the co-worker's groin touched the plaintiff when he stood behind her in a line, according to the plaintiff. Another time, when the plaintiff needed first aid, the co-worker prevented her from going to the nurse, he purportedly administered the aid himself, and he blew on her finger and called her "baby." 

The plaintiff made a written complaint that did not mention the harassment. However, the plaintiff testified she told a human resources (HR) professional and her union representative about the harassment when she met with them to discuss her written complaint. After the plaintiff made the written complaint, the co-worker hovered close to her workspace and stared at her on two consecutive days. She resigned after the second day. 

The plaintiff brought claims for sexual harassment and retaliation. She claimed to have been retaliated against by being "constructively discharged"—forced to resign—after making her complaint. The district court granted Whirlpool's motion for summary judgment, and the 8th Circuit affirmed.

The 8th Circuit noted that the parties' evidence presented competing narratives. The co-worker denied any wrongdoing, and the plaintiff's supervisor and the HR professional denied that the plaintiff told them about any of that wrongdoing. To decide whether Whirlpool was entitled to summary judgment, the court construed the facts in the plaintiff's favor.

The court explained that if the plaintiff's claims about the co-worker's conduct were true, the co-worker should be ashamed and embarrassed. But even as it condemned the conduct, the court held that it did not meet the exacting standard that applies to determine whether the conduct affected a term, condition or privilege of employment, which is a necessary element of a sexual-harassment claim. To meet that standard, the conduct must have been severe or pervasive enough to create an objectively hostile or abusive work environment. The court held that the co-worker's conduct did not meet that standard.

The court also explained that even if the co-worker had engaged in sufficiently severe or pervasive conduct, Whirlpool would not be liable because the plaintiff conceded that the offending employee was her co-worker, not a supervisor, and the evidence did not show that Whirlpool knew or should have known about the co-worker's conduct and failed to take immediate and appropriate corrective action. The court explained that even if the plaintiff told the HR representative about the co-worker's conduct during the meeting they had about her written complaint, she resigned only four business days after that meeting, without giving Whirlpool a reasonable time to investigate the complaint and take appropriate action.

As for the plaintiff's retaliation claim, the 8th Circuit concluded that she was not constructively discharged, and she was not otherwise subjected to any injury or harm as a result of her complaints. To establish a constructive discharge, the plaintiff was required to show that she was subjected to intolerable working conditions and that she gave her employer a reasonable chance to eliminate the intolerable conditions.

Lopez v. Whirlpool Corp., 8th Cir., No. 19-2357 (March 4, 2021).

Professional Pointer: Even though this case turned in part on the severity of the conduct at issue, it serves as a reminder of the importance of maintaining, publicizing and following policies that prohibit harassing conduct; establishing procedures for reporting such conduct; and providing that all such reports will be promptly investigated so that appropriate action can be taken.

Michael E. Wilbur is an attorney with Apex Employment Law LLP, the Worklaw® Network member firm in Oakland, Calif. 

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