Kentucky Personal Injury Lawyer Blog

In April of 2008, the Western District Court in Kentucky decided a case which involved a gender based hostile work environment claim. In that case, the facts were as follows. A woman, Ms. Parker worked in a pediatric medical care facility. In December of 2003, at the Christmas party, Ms. Parker was given a gift card to a local adult store as a ‘gag gift’. (See Parker v. Pediatric Acute Care, P.S.C., 2008 WL 746677 (Ky.App.)). Prior to getting the gift, Ms. Parker had gotten wind of it and went to her bosses and told them about it and to stop it because it would embarrass her at the party. Id. They did not and she got the gift. Id. Then, 5 months later, Ms. Parker was fired after working for defendants for over 20 years. In response, Ms. Parker sued in state court and alleged a sexually hostile work environment and retaliatory discharge. Id. The trial court dismissed her case and thus she appealed. Id.

The Kentucky Federal Court sustained the lower trial court’s rulings. It did so for the following reasons. It agreed that the one time, boorish behavior at the Christmas party was not harassment that was severe and/or pervasive and thus not enough for a hostile work environment claim. Id. In order to establish a prima facie claim for hostile environment and sexual harassment by a co-worker, a plaintiff must show, 1) she was a member of the protected class, 2) she was subjected to unwelcome harassment, 3) the harassment was based upon gender, 4) the harassment unreasonably interfered with the plaintiff’s work performance or created a hostile or offensive work environment that was severe and pervasive, and 5) some basis exists for imputing liability to the employer.” Id.

The court stated that “courts have made it clear that an isolated incident, boorish behavior or mere utterance is not sufficient to demonstrate a hostile work environment.” Id. There is a difference between harassing and merely objectionable conduct. Id.

The hostile work environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. (cites omitted). The court went on to discuss the totality of the circumstances evaluation and how you have to look at the frequency, severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with an employee’s work performance. Simple teasing, offhand comments, and isolated incidents will not amount to discriminatory changes in the terms and conditions of employment. (cites omitted).

If you have been the subject of hostile work environment, please call and speak to a Louisville employment lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

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In September of 2007, the Western District Court in Kentucky decided a case which involved a hostile work environment claim. In that case, the facts were as follows. A woman, Ms. Cecil was hired by a company to handle drafting deeds of easement and purchase agreements. She was to be out in the field a lot. She felt she was discriminated against in that she claimed she did not receive any training as compared to her male counterparts. Further, she claimed she was treated unpleasantly and was given unattainable goals. Also, a scheduled field trip she had was cancelled and she contends that was based as a result of the gender discrimination. Further, her boss allegedly stated she looked like Lisa Douglas on the Green Acres television show and that she dressed too nice. And finally on one occasion, her boss used derogatory language and acted violently towards her. (See Cecil v. Louisville Water Company, 2007 WL 2746667 (W.D.Ky.))

A hostile work environment case takes a totality of the circumstance view to it. Each case is viewed on a whole and independently. There is nothing truly written down as to what constitutes a hostile work environment and what does not. There is case law and rules to put in some guidelines as to who can file for a hostile work environment claim, but there are no exact guidelines like in a criminal case. There is nothing that says that someone has to use the “f” word more than 20 times to have a case. Or that a woman (or man) has to be degraded and made fun of 50 times in 6 months to have a hostile work environment case. Or that if you are from Mexico and they make fun of you they have to do so 20 times as compared to being from Colombia where they have to make fun of you only 10 times. There are no such rules or regulations for a hostile work environment case.

In Cecil, the court cited to the Supreme Court for guidance. “When the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ Title VII is violated. (cites omitted). In determining whether an actionable hostile work environment claim exists, we look to “all the circumstances,” including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” (cites omitted).

“A hostile work environment claim, under Title VII, is actionable “when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” (cites omitted). To establish a prima facie case of gender –based harassment, Cecil must establish that 1) she was a member of the protected class, 2) she was subjected to unwelcome harassment, 3) the harassment was based upon gender, 4) the harassment was sufficiently severe or pervasive to create a hostile or abusive working environment, and 5) some basis exists for imputing liability to the employer.” Id. The Supreme Court has repeatedly held that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ Id. Non-sexual conduct may be illegally sex-based and properly considered in the hostile environment analysis where it can be shown that but for the employee’s sex, she would not have been the object of harassment. Id.

The Cecil court did site a Supreme Court case which stood for the proposition that “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discrimination ... because of… sex.’ (cites omitted). The Supreme Court has stated that it is important to distinguish between harassment and discriminatory harassment in order to ‘ensure that Title VII does not become a general civility code.’ (Cites omitted).
The Cecil court also cited other case law that stated that in a hostile work environment case the directive is to “evaluate whether the actions, properly viewed in context, ‘could be viewed by a jury as humiliating and fundamentally offensive to any woman in that work environment, and they go to the core of the entitlement of a workplace free of discriminatory animus.” (cites omitted). The Cecil court then went on to site other cases that did not find enough to sustain a sexual harassment claim. For example, in one case a male supervisor called his female employee “hot lips” and made comments about what she wore and told dirty jokes in front of her did not create a hostile work environment. (cites omitted). In another case, a supervisor put a pack of cigarettes under a female employee’s bra strap, made a remark that she had ‘lost her cherry’ and said he was aroused by the phrase “dick the malls”, was not enough for hostile work environment claim. (cites omitted). And finally in another case, an employer teasing the employee about her dancing on tables at a local strip bar, joking about her “hooterville” and “titsville”, calling her “broad” and making fun of her pronunciation of “bosom” did not create an objectively hostile work environment.” (cites omitted).

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