The 6th Circuit (which covers Michigan and Ohio employers) recently provided employers with fresh guidance on what workplace actions may be considered “based on sex” and how severe and frequent the circumstances must be to create liability for a hostile work environment claim.
Facts
Nicole Massey began working for the Detroit Water and Sewerage Department (DWSD) in 2004. She claimed her supervisor harassed her by commenting on her weight and body odor, and other employees referred to her as the “Queen of FMLA” (or the Family and Medical Leave Act). In addition, she alleged another female security officer put her hand down Massey’s shirt to check if she was wearing a bra.
Massey claimed the harassment continued after the Great Lakes Water Authority (GLWA) replaced the DWSD as the operator of the city’s water and sewer systems. While with the GLWA, she cited five instances of sexual harassment over a 15-month period to substantiate her hostile work environment claim.
The alleged incidents included several comments and a performance evaluation concerning the size of Massey’s breasts and her need for a more supportive bra. When she complained to a coworker about the hostile work environment, no investigation occurred. Instead, Massey was cited for harassing the coworker.
Massey, through her Chapter 7 bankruptcy trustee, alleged unlawful retaliation and a hostile work environment in violation of Title VII and the Michigan Elliot-Larsen Civil Rights Act. (The retaliation count received typical treatment. This article focuses on the court’s treatment of the sexual harassment claim.)
Court’s Decision
The 6th Circuit focused on two major components of an employee’s burden to substantiate a hostile work environment claim: (1) whether the harassment was based on sex and (2) whether it was severe and pervasive enough to create an abusive working climate.
Based on sex. The crux of determining whether Massey’s harassment was based on sex turned on a simple question: Would a reasonable jury consider derogatory comments about a female’s breasts to be based on sex? The simple answer to the question was “yes.” But the court took a much deeper dive.
Harassment is based on sex when an employee is subjected to disadvantageous terms or conditions of employment to which members of the other sex aren’t exposed. It typically occurs through either (1) harassment based on sexual desire or (2) nonsexual conduct that shows antifemale animus. Any unequal treatment of an employee that wouldn’t occur, however, but for the employee’s sex constitutes harassment based on sex.
The 6th Circuit found a jury could easily infer Massey’s alleged harassers wouldn’t have made similar comments to a man because they chose to specifically target her breasts. Moreover, the court stated it’s entirely possible a jury could similarly find harassment of a man who was ridiculed because of the size of his breasts was based on sex. Essentially, the court is stating that simply because a man and a woman can be subject to similar comments doesn’t mean harassment based on sex cannot occur.
But not severe or pervasive. Even though the harassment was based on sex, Massey’s hostile work environment claim was dismissed on summary judgment (without a trial) because the conduct wasn’t considered sufficiently severe or pervasive. Although she testified the harassment made it difficult to sleep and motivated her to get breast reduction surgery, the court didn’t consider the work environment abusive.
First, the 6th Circuit stated “pervasive harassment” needs to be commonplace, ongoing, and continual. Evidence of only five instances of sex-based harassment over roughly a 15-month period didn’t meet the standard.
Second, the 6th Circuit didn’t consider the harassment objectively hostile or severe. No one at GLWS ever physically threatened Massey or placed their hands on her. Additionally, most of the comments were made in the context of conveying work-related information about her uniform, rendering them less severe than comments with no conceivable work purpose.
Notably, the appellate court also refused to hold the GLWS responsible for harassment that occurred before it took control of the workplace. Nathan v. Great Lakes Water Authority.
Takeaway for Employers
In the 6th Circuit, any comments directed at an employee for bodily features or appearances are likely to be considered “based on sex” for purposes of a hostile work environment claim. Additionally, although the five instances of harassment weren’t considered severe or pervasive enough to support a hostile work environment claim, you should view Massey’s case as the outer limits of what conduct does not create an abusive workplace.
Alexander J. Burridge is an attorney with Bodman PLC’s workplace law practice group in Detroit, Michigan.
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