By coincidence, for the second time in a week, a court of appeals files an unpublished opinion in a single-incident harassment case. The Ninth Circuit panel splits 2-1 on whether a “distasteful” skit lampooning the plaintiff created a hostile work environment.
Nasser v. AT&T Corp., No. 07-15845 (9th Cir. Jan. 12, 2009): Not much to summarize here, as the majority decision is scarcely a page long. The panel rejects a claim of sex harassment under the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code § 12940(j)(1), affirming summary judgment. The panel majority observes that “Nasser points to a single incident-a skit performed at a meeting with a large audience, in which Nasser was portrayed-to support her claim. Though we agree that the skit was distasteful, we cannot say after considering the totality of the circumstances that it was sufficiently severe so as to create an abusive working environment.”
Judge Thomas dissents, noting that “the harasser explicitly linked the employee’s work status with her physical attributes behavior and delivered the offending comment before a group of the target’s co-workers, some of whom were her subordinates” (citing Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000)).
