In May of 2013, the United States District Court for the Eastern District of Kentucky decided a case that involved a woman who claims she was wrongfully terminated. (See Farmer v. Dixon Electrical Systems and Contracting, Inc., 2013 WL 2405547 (E.D. Ky 2013)). The plaintiff worked at a job site constructing a new hospital. One defendant had the job and then subcontracted with the other defendant to perform the electrical work on the project. Id. The female plaintiff worked for them for about six months and was terminated for smoking at the site. After she was fired, the Louisville wrongfully terminated female plaintiff filed a charge with the EEOC alleging a hostile work environment and retaliation. Id.
In June of 2013, the United States District Court for the Western District of Kentucky heard a case involving Louisville Race Discrimination, Hostile Work Environment and Quid Pro Quo Sexual Harassment case involving three female employees. (See Perry v. Autozoners, LLC, 2013 WL 3146804 (W.D. Ky. 2013)).
One of the plaintiffs was sexually harassed by a manager. It went on for a month and a half until she finally complained to a regional manager. There was a formal investigation where the regional manager spoke to two witnesses (co-plaintiffs in this case). Based on the investigation, the manager was terminated. Also, the two co-plaintiffs who did not immediately report the incidents were terminating for not immediately reporting them. Then the other plaintiff in the case filed a complaint with the EEOC alleging sexual discrimination and retaliation. Id.
In February of 2013, the United States District Court for the Eastern District of Kentucky heard a case involving the Fourteenth Amendment and the due process and the First Amendment freedom of speech and discrimination against teachers and school board employees for giving their political opinions and whether or not the defendants subjected the public employees to reprisal for reporting information relating to employer’s violation of the law and for the intentional infliction of emotional distress. (See Banks v. Breathitt County Board of Education, 2013 WL 716315 (E.D. KY 2013)). The plaintiff in this Kentucky political discrimination and retaliation case was hired as the Director in 2004. His job duties included supervising approximately 44 employees, as well as conducting monthly examinations of the buses and ordering parts. Initially he started with a 220 day contract. In 2010 his contract was 240 days.
In a 2010 election the plaintiff claims that a person running for Superintendent demanded money from him to support his race. The plaintiff refused and as a result received threats concerning his employment. Plaintiff claimed as a result his work environment became hostile. So plaintiff went and spoke to a Kentucky political discrimination and retaliation lawyer. Finally an investigation was launched, which ended in March of 2012 with the arrest of the Superintendent by the FBI. The plaintiff was questioned by the FBI and the Superintendent knew this and instructed him to lie to the FBI.
On December 10, 2012, the plaintiff hired a Kentucky political discrimination and retaliation lawyer and filed her lawsuit alleging violation of her due process rights, wrongful abridgment of his rights under the First Amendment, discrimination and intentional infliction of emotional distress. He named the board of education as a defendant and parties in their individual and official capacity. The defendants filed motions to dismiss.
In February of 2013, the United States Court of Appeals for the Sixth Circuit decided a case that involved Kentucky hostile work environment sexual harassment. (See Quinn v. Griffith, 2013 WL 628419 (6th Cir. 2013)). In this case, the plaintiff was hired by the corporate defendant as a bookkeeper in November of 2005. Id. The individual defendant was plaintiff’s supervisor. In June of 2008 the plaintiff reported to the company president that she was being harassed. After an investigation, the corporate defendant found that the allegations of hostile work environment sexual harassment were not substantiated.
Plaintiff filed her Kentucky hostile work environment sexual harassment case under Title VII in July of 2009. After a jury trial, she was awarded compensatory damages against the corporate defendant in the amount of $25,000 and punitive damages of $175,000 and compensatory damages against the individual defendant for $25,000. The court because of statutory caps reduced the punitive damages to $50,000 because the defendant only had employees between 15 to 100. Plaintiff’s Kentucky Hostile Work Environment Sexual Harassment lawyer did a very good job in winning this case.
Title VII prohibits discrimination based on sex that creates a hostile or abusive working environment. Id. Where a plaintiff employee suffered no tangible employment action, as in the instant case, the employer can defend against vicarious liability for sexual harassment by its supervisor by establishing by a preponderance of the evidence the affirmative defense… which requires them showing two elements: 1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and 2) that plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Id.
The defendant in this case was accused of unwanted touching of the plaintiff’s private parts and making inappropriate sexual statements. (See Frentz v. City of Elizabethtown, 2010 WL 4638768 (W.D. Ky.)) Plaintiff was fired and then went to complain to the Mayor. She admitted to having alcohol abuse issues and absenteeism issues.
Individuals cannot generally be held personally liable for violations of Title VII or the KCRA’s discrimination, sexually hostile work environment, or quid pro quo sexual harassment provisions. But, they can be individually liable if plaintiff can prove retaliatory conduct in violation of Kentucky Statute 344.280.
Plaintiff claimed she was fired for exercising her free speech regarding her reporting her sexual harassment matters, but this Section 1983 claim was dismissed by the court in that plaintiff never did report the sexual harassment and thus there was no free speech violated. So, Plaintiff filed her Louisville discrimination, harassment and hostile work environment lawsuit
In November of 2012, the U.S. District Court for the Eastern District of Kentucky decided a case that alleged a hostile work environment based on sex in violation of Title VII of the Civil Rights Act of 1964. (See Davis v. L’Oreal USA S/D, Inc., 2120 WL 5930626 (W.D. KY 2012)).
Plaintiff in this Kentucky hostile work environment based on sex case began working for the Defendant in March of 2001. Most of this Kentucky hostile work environment case stems form her time working as a raw material sampler during several months in 2009 and 2010. Id. During those months a Mr. Imhoff began working with the Plaintiff on the chemical receiving dock. Id. Mr. Imhoff began making Plaintiff feel very uncomfortable. Id. Plaintiff claimed that Mr. Imhoff would look and stare at her crotch and breasts all the time. Id. Also, Plaintiff claimed that Mr. Imhoff touched Plaintiff on two separate incidents.
After the first incident of touching, Plaintiff reported it to her ‘lead’ shift supervisor. Also, another supervisor spoke to Plaintiff and then Mr. Imhoff and determined it was more of a ‘he said/she said’ incident and nothing more. Id. But, then Plaintiff alleges that Mr. Imhoff did it again. And this time Plaintiff filed a formal complaint. Id. Based on the company doing an investigation, the company could not substantiate the claims so they told Plaintiff to go back to work.
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).