In an unpublished opinion, Moser v. MCC Outdoor LLC, the Fourth Circuit Court of Appeals (which includes North and South Carolina), reversed the district court’s award of summary judgment for the employer on a plaintiff’s hostile work environment sexual harassment claim.  Despite the Fourth Circuit’s reputation as relatively pro-employer, this case demonstrates a situation where the conduct in question raised a genuine issue of material fact as to whether it was severe or pervasive and therefore should reach the jury.

 

In this case, the court found that the plaintiff described a cycle of sexually inappropriate conduct involving her supervisor which left her in an “impossible situation.”  To illustrate, the plaintiff described conduct where her supervisor continuously “made her reasonably feel like she was his sexual prey.”  The supervisor made comments such as she was a “hottie,” that he wanted to see her in a bikini, and that he “would do her in a heartbeat.”  He showed her a pornographic picture of a little boy and suggested that it was him, and repeatedly touched her over her objection.

 

Additionally, other less severe comments were viewed by the Fourth Circuit to have contributed to the pervasiveness of the conduct in light of the supervisor’s overt communication that he wanted to have sex with the plaintiff.  The court noted that the fact that the plaintiff was a specific object of the supervisor’s attention and not just a witness to inappropriate behavior made the conduct more severe.  For example, the Fourth Circuit noted that the supervisor’s general comments about what part of the female anatomy he enjoyed most and sex acts he would like to perform could reasonably be expected to make the plaintiff much more uncomfortable because she knew he was specifically interested in her.

 

Although the Court recognized the difficulties in drawing the line between a merely unpleasant working environment and a hostile one, it determined that in this instance a reasonable jury could conclude from the evidence that the supervisor subjected the plaintiff to a hostile work environment.  Given that employers are strictly liable for such behavior by supervisors, the specter of a jury trial should be very troubling for the defendant. This case demonstrates the high importance of training and swift response by employers to deter or, at least, stop this type of harassment before it reaches the level of a hostile work environment.