Delaware Sexual Harassment Employment Lawyer
Barbara Stratton, Listed in Delaware Today as a Top Lawyer in Employment Law – November, 2017 Issue
Sex Discrimination and Sexual Harassment
The United States Supreme Court has made it clear that a sex discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U S. C § 2000e et. seq., may be founded upon a sexually hostile, or gender hostile, work environment. “The statutory basis for these claims is the notion that discriminatory ridicule or abuse can so infect a workplace that it alters the terms or condition of the victim’s employment.” Meritor Sav. Bank, FSB v. Vinson, 477 U. S. 57,66,67 (1986).
In order to prevail on a sexual harassment claim, the victim of sexual harassment has to prove:
- The employee suffered intentional discrimination because of her sex;
- The discrimination was pervasive or regular;
- The discrimination detrimentally effected her;
- The discrimination would detrimentally effect a reasonable person of the same sex in the position; and
- The existence of respondeat superior liability.
Andrews v. City of Philadelphia, 895 F. 2d 1469, 1482 (3rd cir. 1990.)
A body of caselaw has developed around each of those factors. One of the most frequently disputed factors, is factor number 2, whether the “discrimination”, (i.e. harassment), was “pervasive or regular”. The point is that not all harassment because of sex is actionable.
The United States Supreme Court emphasized that Title VII is not “ a general civility code for the American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U. S. 75, 80-81 (1998). The discriminatory harassment must be pervasive or regular. “Isolated incidents, unless extremely serious, will not amount to discriminatory changes in the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U. S. 775, 788 (1998). Occasional insults, teasing or episodic instances of ridicule are not enough. Id. at 21. Factors to be weighed include “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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23. No one factor is dispositive, and the analysis must focus on the “totality of the circumstances.” Andrews, 895 F. 2d at 1472. Hence, every case is fact-specific.
There is also much litigation over factor number 5, the existence of respondeat superior liability. That is a fancy way for saying whether the employer is legally responsible for the offending behavior. The Courts have devised a mechanism for determining employer liability based on the status of the harasser, whether it was a supervisor, or a co-worker, and whether the harasser took any tangible employment action against the employee. There are also affirmative defenses which an employer may raise.
If you are the victim of sexual harassment, or gender harassment, contact Knepper & Stratton for an employment consultation to see if your fact pattern constitutes actionable harassment for which an employer can be held liable. Knepper & Stratton filed it’s first sexual harassment lawsuit in the United States District Court for the District of Delaware in 1992. In the intervening years, one would have hoped that discrimination based on sex, gender harassment, and sexual harassment would have ended. Unfortunately, it has not.