Harassed Female Wins “Locker Room” Hostile Environment Case

For all employees who are subjected to a sexually hostile work environment, the recent case of Gallagher v.. C.H. Robinson  from the Sixth Circuit Court of Appeals is fantastic news — and that’s an understatement.

There are so many women who are faced with a regular onslaught of  dirty jokes, pornography, demeaning references about women, and sexual bantering in the workplace.  For those victims, this case is a godsend.

Here’s what happened in the case. 

Julie Gallagher worked for C.H. Robinson Worldwide Inc. in a sales position in the Cleveland office. The area in which she worked had 20 employees and 3 support staff.

The sales staff worked in cubicles that were organized in pods in an open floor plan. Short dividers between the cubicles provided little privacy.

During the four months during which Gallagher worked at C.H.Robinson (“CHR”) she described a “locker room” atmosphere characterized by unprofessional behavior and an environment that was hostile to women.

According to the evidence the work atmosphere was filled with:

  • Prevalent use of foul language
  • References to female customers, drivers, and co-workers as” bitches, whores, sluts, dykes and cunts”
  • Pornography and nude pictures of girlfriends in various sexual poses
  • Dirty jokes and graphic discussions of sexual liaisons, fantasies and preferences on a daily basis

In addition, Gallagher was personally:

  • Called a bitch in anger on several occasions
  • Called fat and referred to as a “heifer with “milking udders”
  • Told that by hiring her CHR covered it’s “girl quota and fat quota”

Gallagher complained frequently to the branch manager, Greg Quest, but things only got worse. Four months after starting, and following an incident during which some drunk male so-workers “flipped her off”, she finally quit and took a job working for a former employer.

Gallagher filed a case for hostile environment sexual harassment under both state (Ohio R.C. 4112.02)  and federal law (Title VII of the Civil Right Act of 1964).

What’s truly shocking about this case is that the district court judge — for reasons that I am at a complete loss to genuinely understand — threw out the case.

Fortunately, the Sixth Circuit wrote a fantastic opinion reversing the district court judge. Here are the highlights and the meat of the decision — all of which will be very helpful to other victims of this sort of disgusting conduct in the future.

In order to prove a sexual harassment case, the plaintiff must prove that

  1. she is a member of a protected class (female)
  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 court, in placing it’s remarkable spin on the facts, and applying that spin to the elements of  the claim set forth above, made several reversible errors.

Mistake #1:  The district court held that the conduct was not “based on sex” based on the following conclusions:

  • Because the offensive conduct Gallagher complained of was in an open forum with both men and women, it was not based on sex
  • A person can’t prevail on a discrimination case which is based on indiscriminate conduct.

Not so according to the Sixth Circuit which held (joining the 2nd and 11th Circuits):

Even though members of both sexes were exposed to the offensive conduct in the Cleveland office, considering the nature of the patently degrading and anti-female nature of the harassment, it stands to reason that women would suffer, as a result of the exposure, greater disadvantage in the terms and conditions of their employment than men.

In other words, since women would find the sexually offensive comments more offensive than men would,  and suffer more harm than men because of it — it is discrimination based on sex.

The defense that someone may be an “equal opportunity curser” or “equal opportunity harasser” is dead — and it’s about time.

Mistake #2: The district court held that the harassment was not severe or pervasive based on the following conclusions:

  • most of the offensive conduct was not directed at Gallagher
  • the harassment was not objectively hostile
  • Gallagher’s work performance didn’t suffer

Wrong on all three points according to the Sixth Circuit which said:

Whether the offensive conduct was intentionally directed specifically at Gallagher or not, the fact remains that she had no means of escaping her co-workers’ loud insulting language and degrading conversations; she was unavoidably exposed to it. 

Considering the totality of the circumstances as described in Gallagher’s deposition, the conclusion is inescapable that a reasonable person could have found the Cleveland office — permeated with vulgar language,demeaning conversations and images, and palpable anti-female animus — objectively hostile …

Considering Gallagher’s description of the offensive conduct to which she was exposed , her reaction can hardly be dismissed as implausible, unreasonable, exaggerated or hypersensitive. Nor is it improbable that the hostility and antagonism she experienced rendered her work more difficult ….

We therefore conclude that the district court erred in its determination that Gallagher presented insufficient evidence that she was subjected to such severe and pervasive harassment  so as to unreasonably interfere with her work performance and create a hostile work environment.

Mistake #3: The district court held that there was no employer liability based on the following conclusions:

  • C.H. Robinson had sexual harassment policies for reporting and Gallagher didn’t follow them
  • reporting the misconduct  only to Greg Quast (the office manager) was unreasonable
  • C.H Robinson did not have notice of the harassment

Wrong again according to the Sixth Circuit Court of Appeals which wrote:

According to Gallagher’s deposition testimony, Quast witnessed much of the harassing conduct and participated in some.  The facts substantiate a finding that Quast knew or should have known of the offensive conduct and of Gallagher’s objection to it.

An employer is deemed to have notice of harassment reported to any supervisor or department head who has been authorized — or is reasonably believed by a complaining employee to have been authorized — to receive and respond to or forward such complaints to management.

 Because a reasonable  jury could find that C.H. Robinson knew or should have known of the sexual harassment Gallagher experienced and yet responded with manifest indifference or unreasonably, the district court’s conclusion that the premises for employer liability are lacking is erroneous.

This case is a tremendous win:

  • It interprets Title VII consistently with it’s purpose
  • It sets forth very clearly what kind of conduct can constitute a sexually hostile work environment and why that it is so
  • It puts the onus in these cases back on the employer where it belongs
  • It emasculates many of the contrived  and nit -picking employer defenses which too many judges have latched on to and used to throw these cases out

The bottom line is that no one should have to go to work and face what Julie Gallagher did. That’s why we have laws which make a sexually hostile work environment illegal.

This decision should help make sure that others aren’t subjected to the same miserable experience.


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