In an interesting case out of the Western District of Pennsylvania that provides some guidance to employers addressing allegations of sexual harassment, a former employee sued her employer claiming that she had been forced to work in a hostile work environment, constructively discharged, not promoted and was retaliated against due to her gender.
The Plaintiff in Bumbarger v. New Enterprise Stone and Lime Co., Civil Action No. 3:14-157 (March 17, 2016), was an employee of a building materials supplier and highway contractor and alleged that her male supervisor routinely yelled at her using profanity, including the use of specific offensive epithets that are typically directed only at women, over the course the employee’s nine year employment. However, the Court found that based upon the evidence presented, it was insufficient to show the creation of a hostile work environment or gender discrimination.
First, the Court looked to the issue of whether the conduct showed that the treatment experienced by the employee was attributable to her gender, noting that the mere use of specific offensive words was not sufficient to show this to be true. Rather, the Court emphasized that a review of the totality of the circumstances, including how many times it was used, what else was said or done by the purported harasser, and to whom else the words were directed, could be, and was, decisive.
Next, the Court moved to the issue of whether the conduct in question was sufficiently severe and pervasive and found that because the use of the specifically offensive words were uttered only on a few occasions over a long period of time, without more, the Plaintiff failed to establish this element.
Third, the Court found that because the supervisor in question “directed his profanities and name calling at both men and women, he could be considered to be ‘an equal opportunity harasser’” and as such, Plaintiff could not establish a disparaging impact of the treatment due to her gender.
Fourth, and significantly, the court found that even if the conduct in question could be found to be harassment, the employer, when it was notified of the conduct, took prompt action to address the same and the action by the employer led to a reduction in the offensive conduct and, as a result, was found to have reasonably responded to the alleged harassment.
Fifth and lastly, the Court found that the Plaintiff failed to take advantage of the preventative measures available to her by delaying in reporting the conduct for years, quitting while the employer was still investigating the incidents in question, and failing to take advantage of an offered transfer to another division away from the purported harasser (which we do not recommend that you offer, but that is for another day.)
Employers are well advised that when they face claims of harassment in the work place, to investigate the claims promptly, to take steps to reduce or eliminate the alleged conduct, and to offer preventative measures to the employee to the extent possible. In addition, employers should update or adopt their policies to prohibit the use of the offensive language in question and to uniformly impose discipline for the violation of that policy.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
