Ridiculed Woman Loses Harassment Claim

By Roger S. Achille June 9, 2021
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When a female employee is subjected to derogatory comments about her breasts, could a reasonable jury find that those remarks were unlawfully based on her gender? The 6th U.S. Circuit Court of Appeals concluded that the answer to this question could be "yes," but ruled for the employer in this case because the harassment was deemed not severe or pervasive.

The plaintiff began working for the company as a security guard in 2004. According to the plaintiff, her supervisors and co-workers commented on "her weight, the size of her breasts, her looks and body odor."

In July 2016 during a yearly evaluation meeting, the plaintiff's supervisor told her that she was going to give the plaintiff a score of 69 (presumably out of 100) purportedly because the plaintiff's uniform looked "sloppy" and because she "needed a more supportive bra." Around that same time, co-workers told the plaintiff that her "breasts were so big, it looked like she could trip over them."

In June 2017, a supervisor allegedly told the plaintiff that she looked "sloppy," and that her breasts were "drooping" and then in July told the plaintiff that she "needed a more supportive bra." In September 2017, the plaintiff's co-workers laughed at her as she entered a meeting and called her "sloppy."

The plaintiff claimed that the company subjected her to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964 by failing to remedy known sexual harassment perpetrated against the plaintiff by her supervisors and co-workers. Harassment is based on sex when an employee is, according to Title VII, "exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." This standard requires the plaintiff to show that "but for" her sex, she would not have been harassed in the way that she was.

To counter the plaintiff's claims, the company argued that the harassment was not based on the plaintiff's sex because it "merely had sexual content or connotations." The district court ruled for the company.

The appeals court acknowledged that harassment is not "automatically discrimination because of sex merely because the words used have sexual content or connotations."

But unlike vulgar jokes, the 6th Circuit commented, a jury could easily infer that the plaintiff's alleged harassers would not have made similar comments to a man, because the harassers chose to specifically target the plaintiff's breasts with their ridicule—"a distinguishing feature and characteristic of her body as a woman."

A reasonable jury could infer from that choice that these comments would not have been made but for the plaintiff's sex.

Despite the court's finding that the comments would not have been made but for the plaintiff's sex, the 6th Circuit affirmed summary judgment for the company because the plaintiff failed to present sufficient evidence that the harassment was severe or pervasive.

Nathan v. Great Lakes Water Authority, 6th Cir., No. 20-1761 (March 30, 2021).

Professional Pointer: Under Title VII, harassment becomes unlawful when "the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile or abusive," according to the U.S. Equal Employment Opportunity Commission.

Roger S. Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.

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