May 08, 2013
Employee claims supervisor, coworker harassed her

A female worker complained about alleged conduct that her male supervisor and coworker engaged in, but did their behavior create a hostile work environment?

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What happened. “Rose” was hired in February 2008 as a project manager assistant for West Coast Contractors of Nevada, Inc. Her supervisor, “Scott,” referred to her duties as “girly work” but then apologized.

Although she did not complain, the company president told Rose that he would speak to Scott about the comment and said Scott had had previous problems with employees. Later, Scott asked Rose “what the hell” she had said to the president.

In May, Rose started working once a week with a male coworker. In her presence, he and Scott remarked on the appearance of a large-breasted woman. When the coworker made sexual remarks, Scott smiled or chuckled. Rose complained, but the coworker’s behavior continued.

On July 14, the president interviewed Rose, Scott, and the coworker separately about Rose’s complaints and warned Scott that he could face termination if he did not address future offensive comments.

With the president on vacation 4 days later, Scott started criticizing Rose’s work, belittled her, and cursed at her. After being reprimanded by Scott on July 29 for telling a subcontractor that no West Coast employees could attend the subcontractor’s social event because they would all be at a wedding, Rose left the room even though she was supposed to attend a meeting there.

After Rose complained again, the president said she and Scott “obviously had a problem getting along” and that it would be best if she left. It was unclear whether she was fired (as Rose contended) or she quit (as the president maintained).

Rose filed suit under Title VII of the Civil Rights Act, claiming sexual harassment and retaliatory discharge. The district court ruled in favor of West Coast. Rose appealed to the U.S. Court of Appeals for the 9th Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

What the court said. The appeals court affirmed in part and reversed in part, saying Rose did not show that the conduct “was so severe or pervasive that it altered the conditions of her employment” or created a hostile work environment. However, the majority said there was evidence that she was fired for her protected activity (i.e., the July 14 complaints), meaning West Coast may be liable for retaliation. Westendorf v. West Coast Contractors of Nevada, Inc., U.S. Court of Appeals, 9th Cir., No. 11-16004 (4/1/13).

Point to remember: Promptly investigate complaints of sexual harassment, take action to remediate any harassment, and avoid retaliating against those who lodge complaints.

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