Sexual Harassment Standards Get Loosened by “Conservative” 4th Circuit

In Okoli v. City of Baltimorethe Fourth Circuit handed down a relatively rare decision last week overruling a district court’s grant of summary judgment for the employer.  While a decision favoring the employee over the employer is a relatively rare occurrence in the Fourth Circuit, on its face the decision does not seem very surprising because the facts seem clearly in favor of the employee.  But a side-by-side comparison of the Court of Appeals’ decision with the district court’s decision shows that the case is not as clear cut as it may seem.  Indeed, contrasting these two decisions shows how, based on the same set of facts, two courts can reach completely opposite conclusions.  It also shows how the formerly “conservative” Fourth Circuit has become considerably more “employee friendly.”  The United States Court of Appeals for the Fourth Circuit is the appellate court covering Virginia, Maryland, West Virginia, and North Carolina.

The case concerns a female employee who claimed to have been the victim of sexual harassment in the workplace.  The record indicates that she was, at the very least, the recipient of apparently unwanted sexual advances by her supervisor.  However, the courts differed as to whether the degree of such conduct rose to the level of a hostile environment.  The courts also differed as to whether the plaintiff was fired in retaliation for reporting the sexual harassment.

In its decision overruling the district court’s grant of summary judgment in favor of the employer, the Court of Appeals highlighted a number of facts that make one wonder how any reasonable person could have concluded that there was no hostile work environment.  For example, the Court of Appeals cites:  (1) disparaging jokes about gays and lesbians; (2) comments by the plaintiff’s supervisor about his Jacuzzi fantasies with the plaintiff; (3) comments by the plaintiff’s supervisory about a group sex fantasy; (4) questions about the plaintiff’s underwear; and (5) forcible kissing.  The Court of Appeals also found that the circumstances surrounding the plaintiff’s termination suggested that a retaliatory termination may have occurred as a result of the plaintiff complaining about the unwanted sexual advances by her supervisor.

Although the facts before the district court were precisely the same as those examined by the Court of Appeals, the district court’s analysis of the facts was much different.  The district court reasoned that, while certainly objectionable and inappropriate, the supervisor’s behavior did not rise to the level required to give rise to an actionable hostile environment claim.  In fact, the district court noted that in at least one other case, evidence that a supervisor tried to kiss an employee several times, placed “I love you” signs in the employee’s work area, and repeatedly touched the employee’s shoulder was determined not to be sufficiently serious considering their infrequency.

Even more striking is the difference of opinion between the district court and the Court of Appeals on the issue of retaliatory termination.  The district court found that the evidence showed that the employer made the decision to terminate the plaintiff before she complained about workplace harassment.  In particular, the court focused on the fact that the supervisor instructed another employee to draft a termination letter to the plaintiff several days before the plaintiff made the complaint against him.  However, the Court of Appeals discounted this evidence, holding that, although the letter was certainly created before the plaintiff made the complaint against him, it was at least possible that the contents of the letter were changed after the complaint was made against the supervisor.  For instance, the Court of Appeals hypothesized that the letter could have begun as a favorable performance review and subsequently been modified to become a termination letter after the supervisor learned of the complaint made against him.  However, there was nothing in the record that supported such a hypothesis, other than conjecture by the Court of Appeals.

The way in which the Fourth Circuit analyzed this case suggests a possible turning point in its jurisprudence.  Traditionally thought to be an employer-friendly forum, the tide may be shifting to a more employee-friendly jurisprudence.  In this case, the Fourth Circuit appears to go the extra mile to preserve a plaintiff’s retaliation claim.  Whether this will become a pattern remains to be seen.

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