Fourth Circuit Says Verbal Conduct Can Rise to Level of Actionable Harassment
- January 23, 2015
Not all offensive conduct in the workplace rises to the level of an actionable sexual harassment claim. Federal courts have repeatedly held that in order to cross the line into an offensive working environment, the conduct must be severe and pervasive. Last month, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) reversed a lower court decision dismissing a sexual harassment lawsuit on the grounds that the plaintiff never claimed any offensive touching or physically threatening behavior.
In Walker v. Mod-U-Kraf Homes, the female plaintiff alleged that her male supervisor engaged in a long series of humiliating and demeaning sexual comments directed toward her. She claimed that she complained to her team lead, but was told to ignore the problem in the hopes that it would go away. She sued claiming sexual harassment after being terminated following a confrontation with the supervisor over his comments.
The district court dismissed the complaint on summary judgment, concluding that the alleged behavior was not severe enough to constitute actionable sexual harassment under Title VII. The lower court characterized the supervisor’s alleged conduct as “boorish” and “immature,” but concluded that objectively, it was insufficient to constitute sexual harassment largely due to its purely verbal nature.
The Fourth Circuit disagreed, reversing the district court and remanding the matter for jury trial. The court stated that verbal conduct can rise to the level of actionable harassment even if no threats or physical conduct accompany the behavior. Instead, the court should concentrate on the frequency and severity of the comments, and how they interfered with the victim’s work. In this case, the alleged conduct was too close to the line between actionable and non-actionable harassment, and therefore should be decided by a jury instead of through the summary judgment process.
The determination that purely verbal conduct can constitute sexual harassment is not particularly novel. However, the Fourth Circuit allowed this claim to proceed to the jury in spite of its multiple prior decisions finding seemingly more severe conduct as insufficient to cross the hostile environment line. As the composition of judges on the Fourth Circuit changes, older cases shielding employers from liability except in the event of particularly severe harassment may no longer be reliable precedent.