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Fourth Circuit Says Conduct Not Directly Aimed at Plaintiff May Support Title VII Claim

    Client Alerts
  • December 05, 2008

In Ziskie v. Mineta, a new decision from the Fourth Circuit Court of Appeals (which includes North and South Carolina), a female traffic controller alleged that she and other female employees were “being subjected to a continuing atmosphere of harassment and intimidation,” and that she was being retaliated against because she had complained about the treatment.  Specifically, the plaintiff complained about an “unremitting use of profanity, sexual innuendos, mass flatulence, and other behaviors designed and intended to make female employees uncomfortable and ill at ease.”  The plaintiff’s complaints included a number of sexist comments directed to other employees or not directed to anyone in particular.  In addition, she claimed that she was treated with hostility by a number of male co-workers.


The plaintiff filed a Title VII action and the lower court granted summary judgment for the defendants on the hostile environment claims.  In making its decision, the lower court disregarded affidavits submitted by some of the plaintiff’s co-workers, finding that the conduct described in the affidavits, but not experienced by the plaintiff, had no bearing on her Title VII claim.


On appeal, the Fourth Circuit reversed and remanded the case back to the lower court.  Specifically, the court held that the lower court should have considered the affidavits submitted by the plaintiff’s co-workers.  The Fourth Circuit reasoned that “[w]hen examining all the circumstances of a plaintiff’s workplace environment, evidence about how other employees were treated in that same workplace can be probative of whether the environment was indeed a sexually hostile one, even if the plaintiff did not witness the conduct herself.”


While the Fourth Circuit remanded the case to the lower court, it also noted that the evidence submitted by the plaintiff at the summary judgment level was weak.  The court pointed out that in order to succeed at trial, the plaintiff would have to prove that the alleged harassment was because of her gender, and that the conduct was severe or pervasive enough to alter the conditions of her work.  This case serves as a reminder of the importance of conducting prompt and thorough investigations of harassment complaints and administering appropriate discipline.  Additionally, employers should not assume that actions that took place outside of the presence of a complaining employee will be excluded in a subsequent Title VII lawsuit filed by that employee.