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May/June 2007 Sexual
Harassment Not Limited to Sexually Suggestive Comments
Julie Boumehdi was an employee of Plastag Holdings, a company that manufactured credit cards, gift cards, calendars, and identification tags for textile companies. She worked in various capacities during her employment tenure, but held the position of press operator during the relevant time period. In January 2002, Ed Vega became Boumehdi’s supervisor and began directing a healthy dose of negative sex-based comments at Boumehdi over the ensuing ten months. Specifically, Vega was alleged to have made the following comments: (a) on five or more occasions, Vega told Boumehdi that women do not belong in the pressroom and think they know everything; (b) once, while Boumehdi was bending over in the course of her work, Vega told her to remain in that position and that it was perfect; (c) Vega told Boumehdi that women should work in flower shops and that she should wear low cut blouses and shorter shorts; (d) during Boumehdi’s pregnancy, Vega asked her if she had gotten a breast enlargement; (e) after learning that Boumehdi had miscarried, Vega asked her what business she had getting pregnant at her age; (f) Vega once told Boumehdi that just because she is a woman does not mean that she should not take out the trash; (g) on three occasions, Vega told Boumehdi to clean the pressroom, adding that he did not ask the men to do so because that is what women are supposed to do; and (h) Vega once told Boumehdi that he had to leave work to get a lap dance down the street. Although Boumehdi complained to the company’s director of human resources on more than one occasion, no action was taken against Vega. Boumehdi ultimately sued the company for sexual harassment, among other things. To establish a claim of sexual harassment, a complaining party must demonstrate that (a) she was subjected to unwelcome harassment, (b) the harassment was based on her sex, (c) the harassment was sufficiently severe or pervasive so as to alter the condition of her employment and create a hostile or abusive atmosphere, and (d) there is a basis for employer liability. The trial court originally dismissed Boumehdi’s claim on the basis that Boumedhi had not demonstrated that the conduct and comments to which she was subjected were severe or pervasive. On appeal to the Seventh Circuit Court of Appeals, Plastag argued that the lower court’s decision should be affirmed because the conduct and comments Boumedhi was allegedly subjected to were not “unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature.” In reversing the lower court’s decision, the appellate court noted that although most of Vega’s alleged comments were sexist rather than sexual, the court’s precedent did not limit hostile environment claims to situations in which the harassment was based on sexual desire. Supporting its decision, the court approvingly referenced a leading treatise explaining that sexual harassment can include employer action based on sex, but having nothing to do with sexuality. The court also referenced courts from other jurisdictions holding that antifemale animus can support a hostile work environment claim. Employer Notes: The Seventh Circuit’s decision is important for three primary reasons. First, it demonstrates that the traditional notions of what constitutes sexual harassment are short-sighted and fail to acknowledge the true state of the law. Second, it supports the broad language of Title VII which prohibits an employer from “otherwise adversely affecting an employee’s status as an employee, because of such individual’s race, color, religion, sex, or national origin.” Third, and related to the second point, it provides a resounding reminder that actionable harassment can be based on negative or adverse conduct or comments based on any protected category. In order to avoid claims like Boumehdi’s, employers should be vigilant in investigating and acting upon any claims of harassing behavior based upon any of the protected categories covered by the various antidiscrimination laws, not just those that fit within common beliefs of what constitutes actionable harassment. Jeffery M. Goodz;
Moyle, Flanigan, Katz, Breton, White & Krasker, P.A.; West Palm
Beach, Florida. |
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The
Seventh Circuit Court of Appeals, which governs the states of Wisconsin,
Indiana, and Illinois, recently ruled that a claim of sexual harassment
is not exclusively limited to acts or comments of a sexual nature, but
may also include negative acts or comments related to gender. (Boumehdi
v. Plastag Holdings, LLC (7th Cir. 2007).