Reprinted from the October 1, 2007 issue of MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

A Hostile Environment Need Not Be "Hostile"

Conduct need not be threatening or abusive in nature to amount to an illegal hostile environment. Otherwise legal actions, such as asking an employee out on a date, giving a worker flowers, or putting an arm around the shoulders of a subordinate, can amount to a hostile environment if those actions are frequent, severe, and humiliating enough to interfere with the employee’s work performance.

A ROSE BY ANY OTHER NAME…

Erica McCarthy was talking to a group of co-workers when Danny Pallotta, a manager from another department, sidled up beside her, put his arm around her waist, and handed her a bouquet of roses.

“These are for you,” Pallotta said with a wink.

“Uh…thank you,” McCarthy mumbled, her face turning a deep shade of red.

Later, McCarthy marched into Pallotta’s office and tossed the flowers onto his desk.

“You shouldn’t have —,” the employee began to object.

“It was nothing,” Pallotta interrupted. “I couldn’t help but think of you when I walked past the florist.”

“I mean you should not have bought these for me or given them to me in front of everyone,” McCarthy corrected. “I was mortified!

“You’re making everyone think we’re together,” she added. “I’ve asked you time and time again to dispel the rumors that we are a couple. Instead, you act like I’m your girlfriend by giving me gifts and touching me every time you see me.”

“If everyone already thinks we’re a couple, then you might as well agree to go out with me,” Pallotta insisted.

“I think you actually enjoy all the gossip around the company,” McCarthy accused.

“If you agree to go out with me, I promise to lavish you with money and gifts,” Pallotta offered, ignoring her protestations.

“I don’t want your money or your gifts,” McCarthy refused. “I already have a boyfriend. All I want is for you to stop humiliating me in front of my co-workers.”

Despite the fact that McCarthy repeatedly asked him to stop, Pallotta continued to embarrass and humiliate her by making public advances toward her. On one occasion, when he introduced her at a company banquet, he told everyone that, although she was not his date, he wished she were and that he had asked her, but had been turned down.

…WOULD REEK OF SEXUAL HARASSMENT

McCarthy claimed that she rebuffed Pallotta’s inappropriate advances over a period of five years. Then, when she announced her engagement to another man, his attitude toward her changed. Shortly thereafter, McCarthy was terminated for performance problems. As a result, she sued the company for sexual harassment, claiming that she was fired for rejecting Pallotta’s advances.

A district court dismissed her claim, ruling that McCarthy was unable to show that the alleged harassment was sufficiently severe or pervasive to alter the conditions of her employment and create a discriminatorily abusive working environment. But a court of appeals disagreed. It determined that she provided enough evidence to show that she had experienced a hostile work environment.

In order to determine whether an environment is sufficiently hostile or abusive, the U.S. Supreme Court has directed the courts to look at the “totality of the circumstances.” In reaching its decision in this case, the appeals court considered the following factors.

1. The frequency of the discriminatory conduct. McCarthy claimed that Pallotta touched her leg 10 to 20 times on one particular occasion. During the five-year period, he put his arm around her, rubbed her legs, kissed her, and otherwise touched her almost every time she came into a room.

2. The severity of the conduct. McCarthy pointed out that she had been repeatedly hugged, groped, and even kissed, often in public. Based on the frequency, the conduct was sufficiently severe for a reasonable person to experience a hostile work environment.

3. Whether the conduct is physically threatening or humiliating. According to the Supreme Court, an employee need not feel physically threatened; humiliated is an equal consideration. There was no question that a reasonable person subjected to this kind of unwelcome conduct at work would feel humiliated, said the appeals court.

4. Whether the conduct unreasonably interferes with an employee’s work performance. Appeals court: A jury reasonably could infer that Pallotta’s public pursuit of McCarthy made it more difficult for her to perform her job and command the respect of her subordinates.

More information about this publication/Order a subscription