The Objective Test for Severe or Pervasive Sex Harassment

Dana Ellis worked for Jungle Jim’s grocery. Upon transfer to the seafood department her new supervisor, Caldas, started making lewd comments and suggestions on what she said was a daily basis.  Ellis cried and became physically ill because of her supervisor’s conduct. She needed her job, which paid $9.00 an hour. The store had a sex harassment policy in its employee handbook but Ellis didn’t follow it by complaining to her supervisor’s boss. A co-worker brought the harassment to the attention of management. The company reprimanded Caldas and told him to stop but the conduct continued albeit in a less direct way.

The law is clear as to what plaintiff’s such as Ellis must prove to win a hostile work environment sex harassment case:

Ellis must demonstrate: that the harassment was unwelcome, (2) that the harassment was based on sex, (3) that the harassing conduct was sufficiently severe or pervasive to affect the "terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment," and (4) that either (a) the harassment was committed by a supervisor, or (b) the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

The third element requires a two-pronged showing: the conduct in question must (1) be severe or pervasive enough to create an objectively hostile or abusive work environment, and (2) be subjectively perceived by the victim to be abusive.

When you read the opinion it seems abundantly clear that the supervisor created an abusive sexually charged work environment. Nevertheless, the trial court tossed the case on summary judgment because it decided that the supervisor’s conduct wasn’t bad enough to make it harder for Ellis to do her job. The court of appeals reversed that decision and sent the case back for trial. The trial court’s error was in making its own subjective determination that a reasonable person would have been able to put up with the supervisor’s behavior. This is what I believe is a common mistake judge’s make. The issue for the trial court is not the judge’s opinion of the plaintiff’s working condition; rather, the issue is whether reasonable people, sitting on a jury, could view the evidence as demonstrating the existence of a hostile work environment. It’s unfortunate that Ms. Ellis had to pursue a timely and costly appeal in order to correct what really is a simple application of the law.