By Marjorie Johnson, J.D.
Under the state’s anti-bias law, if the purpose or effect of sexual conduct was “to unreasonably interfere with employees’ work performance through an intimidating work environment,” the fact the employee had not yet been harassed herself did not negate the hostile work environment.
A restaurant employee who purportedly observed two males sexually harass her coworkers, and feared that if she worked alone with them, she would become a victim of their sexual advances herself, defeated summary judgment on her hostile work environment claim brought under the Massachusetts Anti-Discrimination law.A federal district court in Massachusettsrejected the employer’s contention that her claim failed since the alleged sexual harassment was directed at her coworkers only, finding that she demonstrated sufficiently severe or pervasive conduct a jury could find had the effect of subjectively interfering with her work performance (Romero v. McCormick & Schmick Restaurant Corp. dba McCormick & Schmick’s Seafood Restaurant, March 17, 2020, Talwani, I.).
Observed sous chef’s harassment of coworkers. This sexual harassment lawsuit was brought by five employees who worked at one of the employer’s restaurants. The employer moved for summary judgment as to the claims of one of the employees, who had worked at the restaurant as a dishwasher and cleaner. She claimed that during the six-month period between January and July 2015, she observed a male sous chef sexually touching a female coworker, including “hugging” her over 20 times and approaching her from behind while she was washing dishes and grabbing her breasts or hugging her waist. She also heard him tell her that “in a short time, you’re going to be mine” as he grabbed her from behind.
During the same period, the employee also repeatedly observed the sous chef grabbing or hugging another female coworker in the same manner, including in the small prep food area where the coworker worked. The coworker did not hug him back and appeared “bothered” and “upset” by the physical contact. Though the employee also heard reports from other workers of their interactions with the sous chef, he never touched her personally.
Witnessed executive chef’s sexual innuendo. Meanwhile, the employee also heard the new executive chef comment to a female prep cook, who had asked him for food, “did you want something to eat … here, eat this,” gesturing toward his penis. Other coworkers also told her about their interactions with him, but the executive chef did not direct any harassing comments or conduct at the employee personally.
Feared for self. The employee claimed that she became afraid to go to work and to clean the lavatories when either the men were at work since she feared that they might touch or hug her. However, she did not initially report the incidents since she was also afraid she would be fired. She experienced a rise in blood pressure, had difficulty sleeping, and lost weight.
On July 2, 2015, she and her coworkers complained about the men to the restaurant’s general manager. The sous chef resigned less than two months later, and the executive chef left his position in May 2016. The employee continued working at the restaurant until she resigned in January 2018.
HWE created by conduct directed at others. The court first rejected the employer’s contention that the employee could not have been subjected to an actionable hostile work environment since the alleged sexual harassment was directed at her coworkers only. Under the state anti-bias statute, “if the purpose or effect of sexual conduct is to unreasonably interfere with employees’ work performance through an intimidating work environment, the fact that a particular employee has not yet been grabbed, touched or ridiculed does not negate the hostile work environment.” Thus, the argument that conduct which was not directed at the plaintiff may not be evidence of a hostile work environment was “simply wrong.”
Objectively severe or pervasive. The employer also failed to convince the court that the alleged conduct was not objectively severe or pervasive enough. The employee asserted that she saw the sous chef come up from behind and grab her coworker’s breasts or waist multiple times in a six-month period and that she witnessed him repeatedly hug or grab another coworker. Within that same period, she also purportedly saw the executive chef gesture to his penis when another coworker asked him for food. She also testified that she worked alone when she cleaned the lavatories and that the dishwashing area was downstairs from the main restaurant.
“A reasonable person, working alone cleaning lavatories or out of the public view in the downstairs dishwashing area, who witnesses numerous incidents of non-consensual sexual grabbing and touching of her female coworkers, including approaching them from behind and in small areas, and rude sexual behavior from her supervisor, may find the conduct sufficiently severe and pervasive to reasonably fear that such sexual conduct would be directed at her and that this sexual conduct would thus interfere with her work performance,” wrote the court.
Subjective interference. Finally, the court rejected the employer’s contention that there was no evidence the alleged harassment of the employee’s coworkers subjectively interfered with her work performance. She stated that she was afraid to go to work and feared being alone with the sous chef because she thought he would touch or grab her too. When she had to clean the lavatories, she was fearful that either of the men would touch her. And even outside of work, she was bothered by the thought of their conduct.
She supported her allegations of fear with testimony that she feared being fired if she complained and suffered lost sleep, increased blood pressure, anxiety, and weight loss. These types of physical and psychological effects of a hostile work environment are often the basis of showing subjective interference with work performance, the court observed.
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