Second Circuit Affirms Case by Case Consideration of All Relevant Factors in Sexual Harassment Lawsuit

May 26, 2006

Reviving a female employee's claim for hostile environment sexual harassment, the U. S. Court of Appeals for the Second Circuit reversed summary judgment for the employer after an examination of all relevant factors taken together. A federal trial court had misapplied the legal standard and improperly considered the factors for proving hostile work environment harassment in isolation, rather than as a whole. Saying that judges are in no better position than juries to determine when conduct crosses the line of inappropriate behavior into actionable misconduct, a unanimous court found that "although the line is admittedly indistinct, its haziness counsels against summary judgment." [Schiano v. Quality Payroll Sys. Inc., (2d Cir., 4/24/06). ]

After the employee began dating a co-worker, a company vice president allegedly started making inappropriate and offensive comments that the employee was "sleeping with the wrong employee" if she wanted to get a raise in the amount she had requested. Other inappropriate comments and behavior allegedly occurred at a company holiday party and for five months afterwards. Although the employee had made repeated complaints to the company president and her department supervisor, she resisted putting them in writing, citing her fear of retaliatory conduct. Although a physical barrier was installed between the work areas of the employee and the vice president, and although her supervisor again reported the conduct to the president, the employee resigned after her supervisor told her she could no longer report to him.

The employee subsequently sued the employer for, among other things, hostile environment harassment under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. On the employer's motion for summary judgment, the trial court found that a reasonable juror could not conclude that the employee's claim rose to the level of unlawful conduct and dismissed it. Characterizing the offending conduct as "occasional touching, rude comments, and hostile stares," the trial court compared this with other relevant Second Circuit decisions and concluded the conduct was not sufficiently severe or persuasive to be unlawful.

The U. S. Court Appeals for the Second Circuit, however, found that the trial court had improperly applied the test for determining whether the offending conduct was sufficiently severe or pervasive under the U. S. Supreme Court's ruling in Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), which recognized sexual harassment as a form of unlawful sex discrimination for the first time. The trial also had misunderstood the standard for summary judgment in the Second Circuit. "There are, of course, cases in which it is clear to both the trial court and the reviewing court that after assessing the frequency of the misbehavior measured in light of its seriousness, the facts cannot, as a matter of law, be the basis of a successful hostile work environment claim," the court explained. However, the trial court in this case appeared to have examined "each factor from Harris in isolation" and concluded that the individual actions did not rise to the level of seriousness to be unlawful.

The Second Circuit explained that in Harris, the Supreme Court made a list of factors for analyzing hostile environment cases, including frequency and severity of the alleged misconduct, whether it was physically threatening or humiliating, and whether it unreasonably interfered with job performance, among others. These factors are to be used as a guide in a factual determination, the Second Circuit court said. Prior decisions of the court do not establish a baseline that plaintiffs must reach to prevail. "On a motion for summary judgment, the question for the court is whether a reasonable factfinder could conclude, considering all the circumstances, that 'the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.' " Accordingly, the court said that each case must be examined on the basis of all relevant factors in determining whether a reasonable juror could find the work environment to be sufficiently objectively hostile to support a claim for sexual harassment. [ Schiano v. Quality Payroll Sys. Inc., (2 nd Cir., 4/24/06).

Editor's Note : In FY 2005, there were more than 13,000 complaints of sexual harassment filed with the Equal Employment Opportunity Commission and with state and local fair employment practice agencies. The Jackson Lewis Workplace Survey for 2005 reported there had been sexual harassment complaints filed against more than 50% of the responding organizations. Clearly, the prevention of sexual harassment in the workplace continues to be a concern for employers, despite the fact that in the same survey, nearly 90% of the respondents said their companies conduct harassment prevention training for supervisors and managers. Jackson Lewis attorneys routinely conduct harassment prevention training, provide policy and complaint procedure review and advice, and defend employers against charges of harassment and other forms of discrimination.

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