He Asked Her To Babysit And Shot Her In The Butt With A Rubber Band. So She Sued For Hostile Work Environment. - Employee Rights/ Labour Relations - United States

Gunnar Larson g at xny.io
Tue Apr 11 08:07:28 PDT 2023


I've seen weaker lawsuits. But let me explain why the Sixth Circuit Court
of Appeals recently affirmed that asking a female colleague to babysit,
once hitting her posterior with a rubber band, and even failing to use her
proper title is not enough to create a hostile work environment based on

What is a hostile work environment?
A successful hostile work environment claim under Title VII, based on sex,
requires a plaintiff to establish four elements:

she is a woman,
she was subjected to harassment based on sex,
the harassment had the effect of unreasonably interfering with her work
performance and creating an objectively intimidating, hostile, or offensive
work environment, and
there is some basis for liability on the part of the employer.
Let's focus on the second and third elements here. Are the actions I've
described "based on sex," and did they unreasonably interfere with her work
and create an objectively hostile work environment?

Courts considering sexual harassment claims require behavior permeating the
workplace with "discriminatory intimidation, ridicule, and insult." Put
another way, isolated incidents will not amount to discriminatory changes
in the terms and conditions of employment unless they are extremely serious.

While it's not a mathematically precise test, I think you can see where
we're heading with this one.

The request to babysit.
The plaintiff, a doctor, claimed that a male colleague asked her to
babysit. The male colleague claimed the two were friendly; the plaintiff
denied it. Accepting the plaintiff's version of the facts, one could infer
gender stereotyping. But, critically, the plaintiff did not allege that the
request impacted her ability to do her job, that she was afraid to refuse
the request, or that the male colleague made any explicit or implicit
threats if she disagreed.

The rubber band in the posterior.
This is clearly inappropriate and unwanted contact with a sensitive area.
But it happened only once — in five years. This kind of isolated incident
is not severe enough to create an actionable hostile work environment.

Using the wrong title.
The same male colleague who asked the plaintiff to babysit, and shot her
with the rubber band, didn't call her "Doctor" after she obtained her
doctorate, despite using that title for male supervisors with doctorates.
Again, this could be gender-driven. However, like the rubber band and
babysitting incidents, this conduct is insufficiently severe, even in
combination with the other incidents, to amount to conduct that alters the
terms or conditions of her employment.

Theoretically, if some or all of these events occurred more frequently,
they could be enough to create an actionable hostile work environment. Once
is enough to warrant some corrective action at work.

But somewhere in between lies a situation where two sides battle in court,
the plaintiff loses, and the defendant wastes money paying lawyers to
defend it.

The content of this article is intended to provide a general guide to the
subject matter. Specialist advice should be sought about your specific
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