Kentucky Personal Injury Lawyer Blog

In March of 2009, the United States Eastern District Court in Kentucky decided a case which involved a hostile work environment sexual harassment matter. In Landers v. CHLN, Inc., 2009 WL 803777 (E.D.Ky.), the Plaintiff, Ms. Landers was working for the defendant when she claims some of the employees and supervisors sexually harassed her. Plaintiff began working for defendant as a bartender in October of 2005. Id. In April of 2006, an Assistant Manager allegedly stated to her regarding some whip cream “Only if I can spray it on and lick it off as a whip cream bikini.” Id. This Assistant Manager also allegedly hugged her 5 times inappropriately. Id. Plaintiff also alleges other staff members said things like “Oh you’re so cute” and another employee gave his phone number to her with a note that said “for a good time, call…” Id. She did not complain to her supervisors about all of these. Id. Plaintiff filed a lawsuit with claims of hostile work environment, sexual harassment, retaliation, discrimination based on personal association, and intentional infliction of emotional distress. Id.

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Recently, in March of 2010, the United States Court of Appeals for the Sixth Circuit decided a case that came out of a Michigan lower court regarding a sexual harassment claim. (See Hensman v. City of Riverview, 316 Fed Appx. 412 (C.A.6(Mich.)). In Hensman, Ms. Hensman worked as a dispatcher for the City of Riverview. Her supervisor was the Fire Marshal/Deputy Chief Mr. Batchelder. Id. She alleged that for approximately 6 weeks that she worked with Mr. Batchelder, that he sexually harassed her and created a hostile work environment. Id. She claims that 1) he did not listen to her because he was distracted at how beautiful she is, 2) he complimented her on her perfume, 3) he described her as voluptuous and well-endowed and 4) was an incident where he locked himself out of the office and had to go to her home at 11:30pm and wake her up with her family and kids and said that she looked cute in her jammies. Id. She admits that he never groped or fondled her and that he never sexually propositioned her. Id. After all this, Ms. Hensman filed a complaint with her department and the matter was reviewed. Id. No sexual harassment was found. Id. Thus, she filed with the EEOC and later sued. Id.

In order to establish the Title VII sex discrimination claim, a plaintiff must meet the following 5 conditions, 1) that she was a member of a protected class, 2) that she was subjected to unwelcome sexual harassment, 3) that the harassment was based on sex, 4) that the harassment unreasonably interfered with her work performance by creating a hostile, offensive, or intimidating work environment, and 5) that there is a basis for employer liability. Id. The Court also noted that the conduct did need to be severe or pervasive. Id. Based on these conditions, the Court held that Ms. Hensman did not have enough evidence to sustain a sexual harassment claim. Id.

Next the Court looked to see if Ms. Hensman had enough evidence to satisfy the requirements for a hostile work environment claim. While looking at the frequency of the discriminatory conduct, its severity, and whether it is physically threatening or humiliating, the Court held that Ms. Hensman did not meet the requirements for a hostile work environment claim. Id. While the comments may have been inappropriate, they were not frequent and did not rise to the level needed by the Supreme Court. Id.

The Court cited a few other cases that had much worse facts as to the alleged hostile work environment discrimination where the Court had not found the allegations enough to sustain such a claim. As the Court indicated, what Mr. Batchelder may have done was offensive, but “simply not substantial enough to satisfy the prima facie showing.” Id.

If you have been the subject of Kentucky sexual harassment or Kentucky hostile work environment discrimination, please call and speak to a Kentucky sexual harassment lawyer or Kentucky hostile work environment discrimination 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.

If you are injured…Ask Andrew!!!

The following video was on the Today Show which helps give examples of what Sexual Harassment in the workplace is.

Recently, in Federal USDC for the W.D. of Kentucky, a reverse discrimination case was brought. The Federal Judge in that case granted summary judgment in that case in essence dismissing it. The case was brought by a Ms. Pusey who claimed that UPS violated her civil rights.

This case involved allegations of co-worker harassment and claims for hostile work environment based on sex and race discrimination under Kentucky Civil Rights Act (KCRA). Ms. Pusey is white and had been employed by UPS for 20 years. Mr. Carter is African-American who had worked for UPS for approximately 6 years. In 2005, the two workers were in a dispute over a work computer. It was not a major fight, but Ms. Pusey claimed it marked the beginning of a campaign by Mr. Carter to harass and intimidate her. For example, Ms. Pusey claims that on September 16, 2005, Mr. Carter passed by her elbowing her in her left breast, and that the same day he tried to trip her. She reported this to her supervisor. For this, Mr. Carter was suspended for 30 days, without pay.

Then on November 23, 2005, Mr. Carter allegedly told Ms. Pusey that it’s good to be black man. She reported this to her supervisor who then spoke to Mr. Carter and instructed him to stay away from Ms. Pusey. Ms. Pusey alleges that for the next 4 months, Mr. Carter harassed her approximately 12 to 15 times. He would make gestures towards her and noises. She finally again reported this to her supervisors. They sent Mr. Carter a letter informing him to stop and tried to schedule the two employees on different shifts and that Mr. Carter was to remain 50 feet from Ms. Pusey.

Ms. Pusey claims Mr. Carter violated the 50 feet rule at least 10 to 12 times from February 2006 to December 2007. She reported these violations and again management spoke to Mr. Carter. Ms. Pusey alleged that liability exists on the part of UPS for the creation of a hostile work environment based on sex and raced discrimination under KCRA. Ms. Pusey alleges that she was harassed by Mr. Carter based on her sex and race in violation of KCRA.

The court stated that to establish a prima facie case of a hostile work environment based on sex or race, a plaintiff must show that: 1) she is a member of a protected class, 2) she was subjected to unwelcome sexual or racial harassment, 3) the harassment was based on her sex or race, 4) the harassment was severe or pervasive, and 5) the employer is vicariously liable. UPS for arguments sake conceded many of the above points, expect they said that Ms. Pusey could not show she was harassed based on her sex or race. And the Court agreed, that Ms. Pusey failed to show that but for the fact that she is Caucasian and/or a woman, Mr. Carter would not have harassed her. By Ms. Pusey’s own admission, none of the comments made were sexual in nature and the elbowing of her breast was not in a sexual nature. Further Ms. Pusey admits that Mr. Carter never made overtly sexist remarks or threats to her. The Court held that ‘a trier of fact cannot infer that harassment emanated from an anti-woman bias merely because a man directed that harassment toward a woman.’ There was no evidence that Mr. Carter’s actions towards Ms. Pusey were nothing more than personal. And there is no evidence that any of the harassment toward Ms. Pusey were because of a bias towards Caucasian people. (See Pusey v. UPS, Inc., 2009 WL 1542714 (W.D. Ky.))

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Recently, in Harrison County, a county employee, an administrative assistant at a community action council filed a lawsuit claiming that her employer was liable under the Kentucky Civil Rights Act. (KCRA). This is a good example to show just how hard it can be to win a discrimination case or sexual harassment case. After you read the facts, you would have thought that it was a slam dunk for the female plaintiff. But, she actually lost at the trial level and had to appeal to get the case back to trial.

In Cobb v. Community Action Council (CAC) for Lexington-Fayette, 2008 WL 1087122 (Ky.App), Ms. Cobb was employed by CAC since 1999 as an administrative assistant. In 2002 a Mr. Hinton became her boss. Ms. Cobb alleged that from April 2002 to September 2002, Mr. Hinton made inappropriate and sexual comments to her. He indicated to her that he wanted a sexual relationship. She told him ‘no.’ But in September of 2002, Mr. Hinton exposed himself to her. He did so again in October 2002. From October 2002 through April 2003, Mr. Hinton forced Ms. Cobb to perform oral sex on him six to twelve times. He would threaten her with her job if she told or did anything about it. In early 2003, the staff members all got together and had a secret meeting to discuss Mr. Hinton’s intimidating management style. On February 27, 2003, the entire staff had a meeting with CAC senior management team to discuss Mr. Hinton. The sexual advances and comments and threats were all discussed. Except Ms. Cobb did not say anything for fear of losing her job and because she was married. Mr. Hinton was thereafter interviewed and denied all allegations of sexual harassment.

A few days after the sister of a supervisor of CAC told her that she was sexually harassed by Hinton when she worked for CAC. But the supervisor did not tell anyone this. In March, CAC was made aware of another person claiming sexual harassment. Then in March 2003, Mr. Hinton made Ms. Cobb go to a meeting with him where he again sexually assaulted her. On April 29, 2003, CAC placed Mr. Hinton on six months probation. Ms. Cobb was horrified and thereafter had a nervous breakdown. Finally on May 1, 2003, Ms. Cobb told CAC, through her lawyer, what had happened. On May 19, 2003, Ms. Cobb began to see a psychiatrist and rape crisis counselor. On June 12, 2003, CAC terminated Mr. Hinton.

Now you would think after reading the above, that this case was a slam dunk. A no brainer. But, no it was not and because of recent Federal and Supreme Court rulings, I will explain to you why.

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When people think of sexual harassment or hostile work environment in the work place, most people think of some type of harassment that has gone on for a long period of time. If a new employee, let’s say a female employee, goes to a new job, the amount of time does not always play a role in supporting or dismissing her claims of sexual harassment or hostile work environment says Louisville Sexual Harassment attorney Andrew S. Alitowski. Though, it does play some role, it is not a final factor. A female employee can work at a job for 2 months or 2 years and if there is sexual harassment or hostile work environment, and all the elements are satisfied, then that female employee could have a case.

For example, recently in Ohio, the Sixth Circuit Court of Appeals reversed a case where the lower district court had thrown it out. The facts are as follows. In 2002, a female person went to a company for a job and was hired as a transportation sale representative. During a four (4) month employment with this company she was subjected to sexual harassment and a hostile work environment. The work atmosphere was that of a “guy locker room”. Foul language was prevalent everywhere. The mostly male workers called co-workers bitches, whores, sluts, dykes and cunts. Sexually explicit pictures where on some of the computers. Pornographic magazines were lying open on desks. Co- workers brought in nude pictures of their girlfriends. Male co-workers traded sexual jokes and engaged in graphic discussions about their sexual liaisons. Beer was drank in the office on Fridays. On Saturdays, guys came into work without their shirt on. Some of the employees called the female employee a “heifer” with “milking udders” or “moo’ed” when she walked by. Anal sex was discussed. The company did have a policy of reporting sexual harassment complaints to the legal department, but the female employee did not do this, but did tell her boss. Also, there was a 1-800 number to call, but she did not use this either in that she was told that anyone who did use it was usually fired shortly thereafter. Anytime she told her boss about the goings on, he would yell at whoever was doing it to stop and they would. (This was not enough says this Louisville sexual harassment attorney).

To establish a prima facie case of sexual harassment based on hostile work environment, the female employee must adduce evidence demonstrating that 1, she is a member of a protected class, 2, she was subjected to harassment, either through words or actions, based on sex, 3, the harassment had the effect of unreasonably interfering with her work performance and creating an objectively intimidating, hostile, or offensive work environment, and 4, there exists some basis for liability on the part of the employer. The District (trial) Court, did not find that the female plaintiff satisfied these elements. The U.S. Court of Appeals reversed saying that the female plaintiff had and remanded the case back to be tried. Without getting into it, basically the U.S. Court of Appeals said to the lower court that it got it all wrong and sent the case back to be tried. The U.S. Court of Appeals said that 1, the female employee was a protected person, 2, the words used were explicitly sexual and patently degrading of women. The natural effect of exposure to such offensive conduct is embarrassment, humiliation and degradation, irrespective of the harasser’s motivation especially and all the more so if the captive recipient of the harassment is a woman, 3, that even though the female plaintiff did finish her work, a reasonably jury could certainly find that the complained of harassment made it more difficult to do her job and that satisfied this element, and finally 4, that because her supervisor knew what was going on, that that could be inferred to the company under vicarious liability and hold them accountable (ie. Giving them notice of what was going on). (See Gallaher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263 (6th Cir. 2009)).

If you have been the subject of sexual harassment or a hostile work environment discrimination, please call and speak to a Louisville sexual harassment attorney 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.

If you are injured…Ask Andrew!!!

Sexual harassment in the workplace has evolved over the years. In the past, sexual harassment occurred when the boss said “sleep with me, or you don’t get the job”. Nowadays, it occurs via email, text, iming, or even on your Facebook web pages.

If you are out on a business trip with your boss and he texts you at 2am asking where are you? Why aren’t you downstairs at the bar drinking with him? That is sexual harassment. If a boss sends you pictures of himself, that you did not ask for and have nothing to do with work, to your phone or email. That is sexual harassment. And please do not think that it only goes one way. Sexual harassment can be a female supervisor harassing a male employee or it can even be of two people of the same sex.

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