A perpetually frustrating issue — whether an employee has established sufficient “severe or pervasive” conduct to present a genuine issue of material fact for a Title VII hostile-work-environment claim — divides the panel in this unpublished Sixth Circuit decision.
Hensman v. City of Riverview, No. 08-1454 (6th Cir. Mar. 11, 2009): The panel appears agree on what the sexualized conduct was, and that it probably would not rate as “severe,” but it splits over whether what the plaintiff alleged was pervasive enough to warrant a trial under Title VII and the Michigan Elliott-Larson Civil Rights Act.
Plaintiff was a firehouse dispatcher, who claimed that the commissioner made various come-ons to her in the workplace. These included alleged comments such as that he was “distracted by how attractive she was,” that he complimented her perfume and continuously “sniffed” her, that she was “voluptuous” and “well-endowed,” and that “You look cute in your jammies” (you’ll have to read the opinion for the full story on that one). He also closed the door to her office while paying visits, walked uncomfortably close to her, gave her several unwanted hugs, and one point grabbed her arm so hard that it left marks. All of this took place over a six-week period.
The majority says that it is not enough to warrant a trial, finding that cumulative effect of all the events was offensive but harmless and mostly not “sexual” in nature (e.g., no overt propositioning or sexual contact). But Judge Clay dissents and says that this decision ought to be up to a jury. “Workplace discrimination cases like this one, in which the merits of the plaintiff’s case largely depend on the credibility of the plaintiff and the alleged harasser, are best left for a jury. I would therefore reverse the district court’s decision to grant Defendant summary judgment. . . . [T]he sheer frequency of the incidents, which all took place over a span of less than two months, indicate enough of an ‘ongoing pattern of unwanted conduct and attention’ to survive summary judgment.”