Yes Virginia, You Can Get To The Jury In The 4th Circuit
Published by Eric A. Welter on December 5, 2007
In Moser v. MCC Outdoor LLC, No. 06-1960 (4th Cir. 12/5/2007), the Fourth Circuit reversed the district court’s award of summary judgment on plaintiff’s hostile work environment sexual harassment claim. Despite the Court’s reputation as pro-employer, the Moser case shows that an employee plaintiff can get to a jury in the Fourth Circuit. The Court […]
In Moser v. MCC Outdoor LLC, No. 06-1960 (4th Cir. 12/5/2007), the Fourth Circuit reversed the district court’s award of summary judgment on plaintiff’s hostile work environment sexual harassment claim. Despite the Court’s reputation as pro-employer, the Moser case shows that an employee plaintiff can get to a jury in the Fourth Circuit.
The Court found that the conduct in question raised a genuine issue of material fact as to whether the alleged conduct was severe or pervasive and therefore created a prima facie case of hostile work environment sexual harassment. Moser’s perception that the work environment was abusive was reasonable because her supervisor continuously “made her reasonably feel like she was his sexual prey.” The supervisor made comments such as she was “a hottie,” wanted to see her in a bikini, and that he “would like to do her in a heartbeat.” He showed her a pornographic picture of a little boy and suggested that it was him. He repeatedly touched her over her objection. Other less severe comments were viewed by the Court to have contributed to the pervasiveness of the conduct in light of the supervisor’s overt communication that he wanted to have sex with Moser. The fact that Moser was a specific object of the supervisor’s attention and not just a witness to inappropriate sexual behavior arguably made the conduct more severe in the eyes of the Court. For instance, the Court noted that the supervisor’s general comments about what parts of the female anatomy he enjoyed and sex acts he would like to perform could reasonably be expected to make Moser much more uncomfortable because she knew that he was interested in her body specifically and would like to perform those acts on her.
The Court affirmed the dismissal of Moser’s quid pro quo, retaliation, and state wrongful discharge claims.
When reading the factual summary in this case, it is difficult to see how the alleged conduct could not be characterized as severe — or at least how a reasonable jury could not find the alleged conduct to be severe. The alleged abuse was continuous, “relentless” and overtly sexual.
Contrast the Moser decision with the recent decision in the Second Circuit (discussed here) in which the Court found the mere presence of pornography in the workplace to constitute actionable sexual harassment.
Regardless of the venue an employer finds itself in, inappropriate sexual behavior should not be tolerated (or winked at) in the workplace. Not only does such conduct give rise to potential liability, but such conduct also creates a demeaning and unpleasant work environment for all.Topics: 4th Circuit, Sexual Harassment, Virginia