Sexual harassment lawsuits against employers require the employee victim to show that the sexual misconduct was so severe or pervasive that it altered the conditions of employment and thereby created a hostile work environment. A stray remark here or there is usually not enough to sustain a case. It is not enough that the employee herself be offended by the remarks. Rather, it must also be shown that a “reasonable person” would find the work environment to be “hostile or abusive.”
Even where the sexual harassment claim is not enough to find a hostile work environment, however, it is still unlawful for the employee to be terminated for reporting harassment.
In a recent case decided by the Ninth Circuit Court of Appeal, Westendorf v. West Coast Contractors (9th Cir. 2013) 712 F.3d 417, the Ninth Circuit affirmed dismissal of a sexual harassment claim brought under Title VII of the Civil Rights Act of 1964, but allowed a retaliation claim to proceed. In that case, Jennifer Westendorf, assistant to a project manager, claimed sexual harassment based on four or five crude and offensive remarks. The Ninth Circuit found that four or five crude remarks over a period of time were not enough to qualify as severe or pervasive.
However, the Ninth Circuit overruled dismissal of a retaliation claim in the same case because it was for a jury to decide whether the employee was terminated for complaining about harassment, which would still be illegal.
As such, the case will proceed to trial to determine whether Ms. Westerfeld was wrongfully terminated for complaining about harassment, even though the harassment itself was not severe or pervasive enough to be actionable. So, in the end, the employee may still recover her full measure of damages.