Choking a female co-worker and telling her she likes it rough could be sexual harassment

But, faced with those facts, that didn’t stop one employer from moving for summary judgment and asking the court to dismiss a female employee’s claims of sexual harassment.

Could the company have possibly prevailed? Find out after the jump…

caveman.jpgOh wait, before we jump, I left out the part where the plaintiff claimed that her male co-worker also told her, “I’ll have you cum before you get your pants off.”

And then there’s the time when that same co-worker said, “Hey! we got your Christmas present!” whereby he held up a vibrating tool and thrust it towards the plaintiff’s genitals.

And what about the other male co-worker who would routinely come up from behind the plaintiff, lean in and smell her in a sexual fashion while pushing his groin into her?

Or when another male co-worker said to the plaintiff, “I just like fucking with you, why would I want to get you fired? I would miss watching that ass of yours!”

Ok, now we can jump and play did the employer get the case dismissed on summary judgment?

* * *

Oh, hell no!

Hostile work environment claims require a plaintiff to establish five elements: (1) the discrimination was intentional and because of the plaintiff’s sex; (2) the discrimination against plaintiff was severe or pervasive; (3) the discrimination had a subjective detrimental effect on the plaintiff; (4) the discrimination was objectively detrimental; and (5) respondeat superior liability (i.e., the defendant knew or should have known of the harassment and failed to take prompt remedial action).

Is there any doubt that, if true, the plaintiff establishes the first four elements of the claim?

  1. Sounds to me like the comments were made to the plaintiff because she is a woman.
  2. The plaintiff testified at her deposition that the abuse was consistent.
  3. The plaintiff further testified that she was actively treating for depression and anxiety, and that she attempted to take her own life.
  4. The court, in its opinion (here) believed that a “jury could likewise infer that a reasonable person would not want to be relegated to a life of perpetual worry and anxiety pertaining to a work environment in which their inherent human dignity was continually assailed with each act of sexual harassment.”

As for the element of respondeat superior, the plaintiff allegedly complained to the CEO/owner of the company, among others, and the company allegedly took no corrective action

Sounds like a case I’d rather settle than a set of facts on which I would move for summary judgment if I’m on the employer side.

But that’s just me.

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