Evidence of Non-Sexual Conduct Can Support Title VII Hostile Environment Claim

Originally posted on June 10, 2010 by Ellen Simon.

Harassing Conduct Need Not Be Sexual To Prove Hostile Environment Claim

When does rude conduct in the workplace support a hostile environment sexual harassment claim? The First Circuit Court of appeals addressed this important issue in the case of Rosario v. The Department of the Army decided last week and you can bet it’s going to make a big difference in sexual harassment cases down the road.

 What Happened In The Case

Ruth Rosario, a civilian employee, worked at the Rodriguez Army Heath Clinic in Fort Buchanan, Puerto Rico as a medical records technician. Her duties included checking patients in and maintaining computerized medical records. 

Rosario worked along side Ivan Arroyo who performed similar duties and trained her. According to the evidence, Arroyo was abusive to Rosario and others on a daily basis.

He threw medical records around, threw personal items in the garbage, disparaged co-workers with derogatory names and made racial comments. According to Rosario, Arroyo:

  • Constantly criticized her clothes as too revealing
  • Constantly talked about her underwear
  • Walked behind her and made faces as he looked at the person she was talking to
  • Complained about the way she would “walk, move, and talk”
  • Would get men together to Rosario’s area where they would “meet, and talk, and then point at her and laugh”

Rosario complained to her supervisor, but the conduct continued.  About a year after the harassment began, Arroyo became Rosario’s supervisor.

Arroyo continued to criticize and mock Rosario and respond to her in ways she found humiliating. According to Rosario, Arroyo watched whatever she was doing or saying and challenged every decision she made. He told her she was fat, had delinquent children, and told her co-workers that she dressed like a “woman of the streets.” Rosario also presented evidence of sexually oriented jokes Arroyo got from the computer which he talked about and passed around.

As a result of Arroyo’s behavior Rosario felt uncomfortable every day, did not want to go to work, became depressed, started losing her hair, experienced panic attacks, and was eventually hospitalized. She needed psychiatric treatment, medication, and attributed the breakup of her marriage to her situation at work.

Rosario filed a formal discrimination complaint with the Army’s Equal Employment Opportunity Office. The agency found against her.

The Lower Court Rules Against Rosario

At the conclusion of the Army’s EEO proceedings, Rosario filed a lawsuit alleging gender and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964.  After dropping the national origin claim, the Federal District Court ruled on Rosario’s gender-based hostile work environment claim and found against her.

The court held that the record showed “Mr. Arroyo [to be] a rude man that lacked courtesy and professionalism,” but the evidence was inadequate to prove a violation of Title VII. The court granted summary judgment in favor of the defendants. Rosario appealed.

The 1st Circuit Reverses

Legal Principles of Hostile Work Environment Claims

Here’s some basic legal principles regarding sexual harassment claims which the First Circuit relied on in making its decision:

  • In order to prove a sexual harassment hostile environment claim, the plaintiff must demonstrate that the complained of conduct was sufficiently severe or pervasive so as to alter the conditions of the plaintiff’s employment and create an abusive work environment (see Harris v Forklift Systems, Inc)
  •  While ‘simple teasing, offhand comments, and isolated incidents (unless extremely serious) do not amount to a hostile work environment, the accumulated effect of repeated verbal attacks and physical intimidation in the workplace may reasonably be found to constitute sexual harassment (See Oncale v. Sundowner Offshore ServicesO’Rourke v. City of Providence)
  •  Where a plaintiff endures harassing conduct, although not explicitly sexual in nature, which undermines her ability to succeed at her job, those acts should be considered along with overtly sexually abusive conduct in assessing a hostile environment claim.(See O’Rourke)
The Court’s Reasoning

According to the Court, even if Arroyo’s behaviors could be reasonably viewed as offhand comments or isolated episodes, some of which may have been motivated by legitimate workplace concerns, a jury could draw a different view from the record.

For example, the Court noted, there was evidence that throughout a two year period Arroyo:

  • complained abut Rosario’s appearance on a daily basis
  • regularly drew the attention of her co-workers to her body and undergarments
  • shadowed her closely when she interacted with patients
  • challenged her decisions
  • mocked her when she spoke to him
  • described her as a street woman to other employees
  • criticized her to doctors and patients

The Court further noted that:

  • Rosario’s allegations were substantiated by multiple witnesses at the EEO hearing, including Arroyo’s immediate supervisor
  • Arroyo’s supervisor testified that Arroyo treated other females who worked at the clinic harshly stating  that “he’d just intimidate them”
  • Arroyo’s conversations with others about Rorsario’s underwear “and especially her panties”, as well as his references to her as a “woman of the streets” in conversations with Moldonado and “other guys” provided additional support for a finding that his behavior toward Rosario was sex based
  • The sexually oriented jokes suggested a lack of respect by Arroyo for his female colleagues, lending weight to the inference that his behavior toward Rosario was inappropriately motivated by gender

In addition, the court noted that the defendant’s focus on the absence of evidence showing that Arroyo was attracted to Rosario was “misdirected.” 

The Court stated:

Harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.  …

The fact that certain complained-of conduct appeared to have no sex-based connotation at all – for example, throwing her food away and removing items from her desk – does not diminish the force of the evidence indicating gender-based animus. Indeed, as we have noted, such acts may be added to the mix in assessing a hostile work environment claim.

In sum, according to the Court,

Rosario presented evidence of longstanding harassment that interfered with her work on a daily basis and ultimately caused harm to her emotional stability and health …..A jury could reasonably find that Rosario met her burden to show conduct that created a hostile work environment within the meaning of Title VII. Hence we vacate the district court’s award of summary judgment for defendants …

Take Away

This case does not present the usual facts which support sexual harassment claims –unwelcome sexual advances and requests for sexual favors– and that’s what makes it so important. It’s a fantastic example of other kinds of evidence of gender animosity that can support a hostile environment claim.

It is clear from this decision that intimidating and abusive behavior which is non-sexual can support a hostile environment case as long as there is evidence of gender animus or gender discrimination.  The legal point is not obvious to many, including many judges, and that’s why this case will be so helpful to so many.

The case also helps address the defense argument raised so often in an effort to get sexual harassment cases dismissed — that Title VII is not a civility code. The Rosario decision illuminates evidence of rude, intimidating behavior — which has nothing to do with sexual advances or sexual references — which can support a sexual harassment claim.  Three cheers for the First Circuit for getting it right.

images: resources3.news.com  dianamaierlaw.com

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