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Kissing, Fondling, Propositioning, Questioning and Describing (Sex) Add Up To A Sexual Harassment Trial

Published by on August 15, 2011

On August 8, 2011, the United States Court of Appeals for the Fourth Circuit reversed the District of Maryland’s grant of summary judgment for the City of Baltimore in a hostile work environment, quid pro quo sexual harassment, and retaliation case.  The opening paragraph of the case will tip off the astute reader as to […]

On August 8, 2011, the United States Court of Appeals for the Fourth Circuit reversed the District of Maryland’s grant of summary judgment for the City of Baltimore in a hostile work environment, quid pro quo sexual harassment, and retaliation case.  The opening paragraph of the case will tip off the astute reader as to the view of the panel on the facts.  More after the break.

The Court of Appeals began its opinion with the following:

Appellant challenges the grant of summary judgment for her employer when her boss forcibly kissed her, fondled her leg, propositioned her, asked sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her.

The District Court granted summary judgment for the City of Baltimore, finding that the conduct of which the plaintiff complained did not constitute a hostile work environment.  It also found that the plaintiff had performance issues, and the City had legitimate reasons for firing her.  Finally, the District Court found that the plaintiff had only made a general complaint, and it did not constitute protected activity for a Title VII retaliation claim. 

The Fourth Circuit disagreed with the District Court’s analysis.  First, the Fourth Circuit concluded that the plaintiff had presented a strong claim of a hostile work environment because of the frequency and severity of the discriminatory conduct – the alleged sexual advances were physical in nature and numerous.  The Court also found evidence that the alleged sexual advances interfered with and impacted the plaintiff’s work. 

Second, the Fourth Circuit concluded that there were factual disagreements between the parties regarding whether the plaintiff had experienced quid pro quo discrimination.  In a burden shifting framework, a plaintiff has to prove that she belongs to a protected group, that she was subject to unwelcome sexual harassment, that the harassment was based on sex, that the her reaction to the harassment effected tangible aspects of compensation, terms, conditions, or privileges of employment, and that the employer should have known about the harassment.  Subsequently, the employer must provide a legitimate, nondiscriminatory reason for its action.  Finally, the employee must show that the employer’s proferred reasoning is pretext for discrimination.  Here, the Court found enough factual disputes regarding the plaintiff’s performance to overturn summary judgment.

Third, on the plaintiff’s retaliation claim, the Fourth Circuit disagreed with the District Court on whether the plaintiff’s complaints constituted protected activity under Title VII.  It found that the City would have known by the context of the plaintiff’s emails that she was complaining about sexual harassment.  The Court also did not believe the defendant’s argument that it intended to fire the plaintiff before it received her complaints of harassment. 

A complete copy of the opinion can be found here

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