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EEOC v. Fairbrook Medical Clinic, No. 09-1610 (4th Cir. June 18, 2010)

| Jun 17, 2010 | Daily Developments in EEO Law |

Whatever we might have learned from network TV shows about the randy lives of medical professionals, actually carrying out such behavior in real life can bite back. The Fourth Circuit reverses summary judgment in this Title VII sex harassment case concerning two doctors, observing that “[what happened here . . . was not merely general crudity but a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment.”

EEOC v. Fairbrook Medical Clinic, No. 09-1610 (4th Cir. June 18, 2010): According to the summary judgment record, the male doctor-owner of a medical practice – Dr. Kessel – liked putting his medical knowledge to work.  He carried around an x-ray of his torso, pointed out the image of his male sexual organs to discomfited employees and sales representatives, and named it “Mr. Happy.” He bragged about how “his wife had a c-section with their triplets . . . [and] she still had a nice, tight  . . .” He directly approached the charging party in this case [Dr. Waechter] to discuss his sex life, even after she told him not to. He discussed graphically how female patients and employees looked, exposed Dr. Waechter to a picture of topless women, told filthy jokes and told patients (in Dr. Waechter’s absence) that she was probably out “screwing” somewhere.

Bad as this was, it got a lot worse when Dr. Waechter became pregnant.  Before and after maternity leave, he often commented on the size of her breasts.  He offered to “help [her] pump [her] breasts,” and once made a remark “that he had seen a drop of breast milk on her desk and that he wanted to ‘to lick it up.'” It culminated with Dr. Kessel remarking, in connection with a contract dispute that Dr. Waechter had with a vendor, that “‘You owe me big for helping you with the Frye thing.’ He then asked, ‘Are you going to let me help you pump [your breasts]?’ Waechter called his comments ‘ridiculous’ and said that they ‘needed to stop.’ She explained that, while she appreciated his help with the Frye matter, she ‘didn’t think that he needed to tell [her] that [she] owed him something, especially of a sexual nature.’ That was the last time that Kessel made an inappropriate comment to her.”

While the district court believed that the above conduct was not directed at Dr. Waechter because of sex, the Fourth Circuit reverses. “Although Kessel made offensive remarks in front of both male and female audiences, his use of ‘sex-specific and derogatory terms’ indicates that he intended to demean women. . . . For instance, Kessel asked Waechter if she had a better libido while she was pumping her breasts, opined that she was probably a ‘wild thing’ in bed, and requested to view and pump her breasts. Based on the nature of these remarks, we think that a jury could conclude that Kessel’s comments were based on sex and that their intimate nature was intended to make women in his employ feel acutely embarrassed and uncomfortable.”

The defendant also proffered an every-medical-clinic-does-it defense:

“[I]t points out that the conduct occurred in a medical clinic where employees dealt with human bodies every day. In this environment, it was not uncommon for both patients and employees to tell off-color jokes to ease the tensions in otherwise awkward situations.
The casual nature of this environment, Fairbrook contends, is best illustrated by the fact that Waechter herself considered it appropriate to display pictures of shirtless men in her examination room.”

*    *    *    *

“This case involves more than general crudity, however. Waechter’s allegations, if proven, show that Kessel targeted her with highly personalized comments designed to demean and humiliate her. In some cases, the remarks seemed intended to ridicule her in the eyes of patients and drug representatives. . . . “

*    *    *    *

“In this case, many of Kessel’s comments ventured into highly personal territory. While Waechter was pregnant, he frequently commented about the size of her breasts. After she gave birth, he asked to see her breasts and to pump them, stated that he wanted to lick up her breast milk, inquired about the status of her libido, and opined that she was probably a ‘wild thing’ in bed. The impact of these comments may have been aggravated by the fact that Kessel had previously made comments to Waechter about his genitals and those of his wife. When assessing the severity of Kessel’s conduct, a jury could give significant weight to the intensely personal nature of this interaction.”

*    *    *    *

“Moreover, we decline to accept the argument that a medical setting, because it deals with human anatomy, is somehow liberated from professional norms. This argument is essentially an effort to exempt medical settings from the requirements of Title VII, notwithstanding the fact that Congress did not do so. To be sure, no one wishes every workplace to wear a grim face, and there must of course be room for humor to alleviate the tensions that inhere in the course of patient care. Here, however, Dr. Kessel’s remarks could be found by a jury to heighten tensions, to adversely affect the performance of female professionals, and to communicate a dismissive attitude to female physicians that hardly seems consonant with the highest standards of professional treatment.”

The court also rejected legal arguments by the defendant that the comments were too infrequent to be severe or pervasive, that the harassment supposedly did not affect Dr. Waechter’s job performance, that the absence of physical conduct made the verbal conduct non-harassing, and that some of Dr. Waechter’s testimony about the events was insufficiently grounded.

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