Labor & Employment Law Daily SCOTUS declines to examine competing sexually hostile environment standards
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Thursday, December 10, 2020

SCOTUS declines to examine competing sexually hostile environment standards

By Pamela Wolf, J.D.

“The truly obnoxious and persistent harassment that was held lawful in this case, and the almost cavalier tone of the decisions below, starkly illustrate the need for action” by the High Court, the petitioner argued.

The Supreme Court on December 7 declined to take up a case that asked the Justices to scrutinize the method for determining when sexual harassment reaches the level of an unlawful hostile work environment. The petition in Paskert v. Kemna-Asa Auto Plaza, Inc., dba Auto Smart of Spirit Lake (20-27) asked whether, assuming other elements of a Title VII claim are present, sexual harassment is unlawful if a reasonable person would conclude, in light of all the circumstances, that the harassment created a hostile environment, or only if the harassment is “more egregious” than the worst harassment ever held lawful in any prior decision in the relevant court of appeals. The former is the rule in most circuits; the latter is the rule in the Eighth and Fifth Circuits, according to the Paskert petition.

Not egregious enough. Below, a female sales associate at a used car lot failed to convince the Eighth Circuit to revive her hostile work environment claim. The appeals court affirmed summary judgment against her Title VII and state-law claims since, while the supervisor and employer “should both be embarrassed and ashamed” for how they treated her, the behavior simply did not meet its high threshold for severity or pervasiveness.

During the employee’s five-month tenure, she was purportedly subjected to sex-based harassment by her male supervisor. She claimed—and a male coworker corroborated—that the supervisor liked to talk about his sexual conquests and once subjected her to unwelcome shoulder rubbing. He also purportedly told her that he could “have” her if they were not married to others, remarked that he never should have hired a woman, and wondered aloud if he could make her cry. The record also showed that he ridiculed and screamed at staff; referred to female customers using derogatory names; and threw objects in the office.

The appeals court found that the supervisor’s alleged behavior was “certainly reprehensible and improper,” but it did not meet the “high bar” set by Eighth Circuit precedent for conduct to be sufficiently severe or pervasive to create an actionable HWE. In McMiller v. Metro, the court had outlined several cases illustrating conduct that was insufficient to meet this threshold, explaining that some conduct “well beyond the bounds of respectful and appropriate behavior” will nonetheless be insufficient to violate Title VII.

Which standard should apply? In her petition for certiorari, Paskert argued that a majority of the federal courts of appeals implement Meritor Savings Bank, FSB, v. Vinson (477 U.S. 57 (1986)) and its progeny in a case-specific fact-bound manner, trying to assess how the harassment would be perceived by a person in the plaintiff’s position, “themselves determining that the harassment is permissible as a matter of law only when a reasonable jury would not conclude that the misconduct had created a hostile work environment.”

On the other hand, the Eighth Circuit has an entirely different standard for deciding when sexual harassment violates Title VII, and for resolving summary judgment motions. “Rather than considering how a reasonable person, or a jury, would assess the specific harassing conduct involved, judges in the Eighth Circuit themselves compare each case with the harassment in a 2002 appellate decision,” the petitioner explained. “Harassment is permissible as a matter of law if a judge concludes that it is ‘less egregious’ than the harassment in that controlling precedent.”

“The truly obnoxious and persistent harassment that was held lawful in this case, and the almost cavalier tone of the decisions below, starkly illustrate the need for action” by the Supreme Court, according to the petitioner.

She said that here case offered “a particularly stark application of that Eighth Circuit standard.”

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