Adding to the Supreme Court‘s precedent in Oncale, the Sixth Circuit recently held that the “based on sex” re–
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
the harassers in Gallagher, where the Sixth Circuit found sufficient evidence to support a finding that the harass–
ment was “based on sex.” Id. In Gallagher, the harassers commonly referred to females as “bitches,” “whores,”
“sluts,” “dykes,” and “cunts.” Id. They also discussed obscene photographs and pornographic magazines, as well as
their own sexual practices and visits to strip clubs. The defendant argued that these remarks were made in front of
both men and women, few of the comments were directed at the plaintiff, and therefore the harassment could not be
“based on sex.” Id. However, the Sixth Circuit found that such conduct evinced anti-female animus, irrespective of
the harassers‘ motivation, because it was more offensive to women and the “natural effect of exposure to such offen-
sive conduct is embarrassment, humiliation and degradation.” Id.
Although Stander’s comments are not identical to those made in Gallagher, the comments and conduct are simi-
lar enough to create a genuine issue of material fact as to whether the behavior was sexually explicit and patently
offensive and, thus, “based on sex.” Like the derogatory words used in Gallagher, Stander described other females
E. Material Issues of Fact Exist as to Whether Stander’s Behavior was Severe and Pervasive
Sufficient evidence also exists to create a genuine issue of material fact as to whether Stander’s conduct created
a hostile work environment. The Sixth Circuit defines the standard for this element as follows:
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an
sive.’ “ Williams, 187 F.3d at 566. The court should not apply this two-part test to individual instances of harass–
ment, but should instead look at the totality-of-circumstances and consider the accumulated effect of such incidents.
Id. at 563. Therefore, the work environment as a whole must be considered when making this determination.
The Supreme Court has held that the following factors should be considered when determining whether the
work environment is “hostile” or “abusive”: “the frequency of the discriminatory conduct; its severity; whether it is
ered similar behavior. More specifically, Defendant relies heavily on Knox v. Auto Products Manufacturing, 375
F.3d 451, 459 (6th Cir.2004), where the Sixth Circuit held that conduct was not objectively hostile even though
coworkers used “the f–word,” they “took the Lord’s name in vain,” and one coworker continuously made sex-related
comments, such as commenting on different “women’s good looking behind[s],” and talked about “sleeping with
different women….” Id. While these comments are similar to those made by Stander, Knox is distinguishable from
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
that an objectively hostile environment is not created when a coworker or supervisor gropes him or herself. Howev-
er, Defendant‘s reliance on Johnson is misplaced because the Seventh Circuit did not reach that conclusion. The trial
court granted summary judgment in favor of the defendant because the complained-of conduct was not sufficiently
severe or pervasive, nor was the plaintiff harassed because of his sex. Id. at 412. The circuit court affirmed the trial
court’s decision solely on the grounds that the plaintiff was not subjected to harassment because of his gender. The
the need to review the work environment as a whole, rather than focusing single-mindedly on individual acts of al–
leged hostility.” Williams v. General Motors, 187 F.3d 553, 563 (6th Cir.1999). “Even where individual instances of
sexual harassment do not on their own create a hostile environment, the accumulated effect of such incidents may
result in a Title VII violation.” Id. While other courts have held that pieces of Stander’s behavior viewed in isolation
may not create an objectively hostile work environment, neither of the cases Defendant relies on address Stander’s
Additionally, Stander’s behavior involved offensive conduct and comments that occurred on a near-daily basis.
Her vulgar and boorish behavior was not spread over time and few and far between such that it could not be found to
create an objectively hostile environment. See Galeski v. City of Dearborn, 435 F. App‘x 461, 467–68 (6th Cir.2011)
(holding that where the alleged harasser offered the plaintiff two compliments, once described his pornography col-
lection, and once described a situation where he was sexually aroused over a two year period amounted to isolated
(Pl.Dep.54). Additionally, “on a daily basis … [Stander] would put her hands up her shirt and rub her breasts …
or she’d rear back in her chair and put her hands down … in her pants.” (Id. at 60). Interspersed with this daily con-
duct, Stander frequently made comments about coworkers, such as “Diane has a bootylicious behind,” “Angie’s got
a butt like a butterfly,” and “Lorraine’s got a big butt, but her stomach is bigger than her behind, and her boobs will
This determination is supported by the Sixth Circuit’s recent decision in Gallagher v. C.H. Robinson World–
wide, Inc., 567 F.3d 263 (2009). In Gallagher, the court found that where the workplace was “permeated with vulgar
language, demeaning conversations and images, and palpable anti-female animus,” a reasonable person could find
stuck her hands down her pants and made a massaging motion. This live manifestation of sexually suggestive behav-
ior and indecent exposure can be considered even more hostile than the demeaning pornographic images at issue in
Gallagher. Therefore, based on the similarities between Stander’s behavior and the objectionable behavior at issue in
Gallagher, a reasonable juror could find that Stander‘s behavior created an objectively hostile work environment that
was demeaning to any woman, and specifically to Plaintiff.
alleged conduct unreasonably interfered with the plaintiff’s work performance. Harris, 510 U.S. at 22.
Plaintiff alleges that her ability to work and her psychological well-being were affected by Stander’s behavior.
After “15 to 20 minutes out of [Plaintiff’s] day that [Stander] touch[ed] herself or ma[de] some kind of sexually–
simulated acts,” Plaintiff found it difficult to return to work. (Doc. # 47, at 121). Additionally, Plaintiff was unable
to discuss work-related matters with Stander, regardless of where the conversation took place, because Stander
ever, Defendant’s reliance on Zaring Homes is misplaced. Although the plaintiff in that case did allege that the har-
assment wasted her time, the court instead relied on the nature of the alleged harasser’s behavior to reach its deci-
sion. Id. at 824–26. Ultimately, the court concluded that the alleged harassment was “merely offensive,” and af-
firmed summary judgment in favor of the employer. Id. The court did not consider whether wasted time amounts to
an unreasonable interference with work performance. Notwithstanding Defendant’s argument about wasted time,
“pretty good,” the issue remains as to whether Stander‘s behavior affected Plaintiff’s ability to work. Plaintiff has
brought forth sufficient facts for a reasonable juror to conclude that her work performance was affected by Stander‘s
behavior and that the work environment was objectively hostile.
2. Subjectively Severe or Pervasive
E.D.Ky.,2012.
Bradford v. Department of Community Based Services, Kentucky
Slip Copy, 2012 WL 360032 (E.D.Ky.), 114 Fair Empl.Prac.Cas. (BNA) 668
END OF DOCUMENT
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
the harassers in Gallagher, where the Sixth Circuit found sufficient evidence to support a finding that the harass–
ment was “based on sex.” Id. In Gallagher, the harassers commonly referred to females as “bitches,” “whores,”
“sluts,” “dykes,” and “cunts.” Id. They also discussed obscene photographs and pornographic magazines, as well as
their own sexual practices and visits to strip clubs. The defendant argued that these remarks were made in front of
both men and women, few of the comments were directed at the plaintiff, and therefore the harassment could not be
“based on sex.” Id. However, the Sixth Circuit found that such conduct evinced anti-female animus, irrespective of
the harassers‘ motivation, because it was more offensive to women and the “natural effect of exposure to such offen-
sive conduct is embarrassment, humiliation and degradation.” Id.
Although Stander’s comments are not identical to those made in Gallagher, the comments and conduct are simi-
lar enough to create a genuine issue of material fact as to whether the behavior was sexually explicit and patently
offensive and, thus, “based on sex.” Like the derogatory words used in Gallagher, Stander described other females
E. Material Issues of Fact Exist as to Whether Stander’s Behavior was Severe and Pervasive
Sufficient evidence also exists to create a genuine issue of material fact as to whether Stander’s conduct created
a hostile work environment. The Sixth Circuit defines the standard for this element as follows:
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an
sive.’ “ Williams, 187 F.3d at 566. The court should not apply this two-part test to individual instances of harass–
ment, but should instead look at the totality-of-circumstances and consider the accumulated effect of such incidents.
Id. at 563. Therefore, the work environment as a whole must be considered when making this determination.
The Supreme Court has held that the following factors should be considered when determining whether the
work environment is “hostile” or “abusive”: “the frequency of the discriminatory conduct; its severity; whether it is
ered similar behavior. More specifically, Defendant relies heavily on Knox v. Auto Products Manufacturing, 375
F.3d 451, 459 (6th Cir.2004), where the Sixth Circuit held that conduct was not objectively hostile even though
coworkers used “the f–word,” they “took the Lord’s name in vain,” and one coworker continuously made sex-related
comments, such as commenting on different “women’s good looking behind[s],” and talked about “sleeping with
different women….” Id. While these comments are similar to those made by Stander, Knox is distinguishable from
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
that an objectively hostile environment is not created when a coworker or supervisor gropes him or herself. Howev-
er, Defendant‘s reliance on Johnson is misplaced because the Seventh Circuit did not reach that conclusion. The trial
court granted summary judgment in favor of the defendant because the complained-of conduct was not sufficiently
severe or pervasive, nor was the plaintiff harassed because of his sex. Id. at 412. The circuit court affirmed the trial
court’s decision solely on the grounds that the plaintiff was not subjected to harassment because of his gender. The
the need to review the work environment as a whole, rather than focusing single-mindedly on individual acts of al–
leged hostility.” Williams v. General Motors, 187 F.3d 553, 563 (6th Cir.1999). “Even where individual instances of
sexual harassment do not on their own create a hostile environment, the accumulated effect of such incidents may
result in a Title VII violation.” Id. While other courts have held that pieces of Stander’s behavior viewed in isolation
may not create an objectively hostile work environment, neither of the cases Defendant relies on address Stander’s
Additionally, Stander’s behavior involved offensive conduct and comments that occurred on a near-daily basis.
Her vulgar and boorish behavior was not spread over time and few and far between such that it could not be found to
create an objectively hostile environment. See Galeski v. City of Dearborn, 435 F. App‘x 461, 467–68 (6th Cir.2011)
(holding that where the alleged harasser offered the plaintiff two compliments, once described his pornography col-
lection, and once described a situation where he was sexually aroused over a two year period amounted to isolated
(Pl.Dep.54). Additionally, “on a daily basis … [Stander] would put her hands up her shirt and rub her breasts …
or she’d rear back in her chair and put her hands down … in her pants.” (Id. at 60). Interspersed with this daily con-
duct, Stander frequently made comments about coworkers, such as “Diane has a bootylicious behind,” “Angie’s got
a butt like a butterfly,” and “Lorraine’s got a big butt, but her stomach is bigger than her behind, and her boobs will
This determination is supported by the Sixth Circuit’s recent decision in Gallagher v. C.H. Robinson World–
wide, Inc., 567 F.3d 263 (2009). In Gallagher, the court found that where the workplace was “permeated with vulgar
language, demeaning conversations and images, and palpable anti-female animus,” a reasonable person could find
stuck her hands down her pants and made a massaging motion. This live manifestation of sexually suggestive behav-
ior and indecent exposure can be considered even more hostile than the demeaning pornographic images at issue in
Gallagher. Therefore, based on the similarities between Stander’s behavior and the objectionable behavior at issue in
Gallagher, a reasonable juror could find that Stander‘s behavior created an objectively hostile work environment that
was demeaning to any woman, and specifically to Plaintiff.
alleged conduct unreasonably interfered with the plaintiff’s work performance. Harris, 510 U.S. at 22.
Plaintiff alleges that her ability to work and her psychological well-being were affected by Stander’s behavior.
After “15 to 20 minutes out of [Plaintiff’s] day that [Stander] touch[ed] herself or ma[de] some kind of sexually–
simulated acts,” Plaintiff found it difficult to return to work. (Doc. # 47, at 121). Additionally, Plaintiff was unable
to discuss work-related matters with Stander, regardless of where the conversation took place, because Stander
ever, Defendant’s reliance on Zaring Homes is misplaced. Although the plaintiff in that case did allege that the har-
assment wasted her time, the court instead relied on the nature of the alleged harasser’s behavior to reach its deci-
sion. Id. at 824–26. Ultimately, the court concluded that the alleged harassment was “merely offensive,” and af-
firmed summary judgment in favor of the employer. Id. The court did not consider whether wasted time amounts to
an unreasonable interference with work performance. Notwithstanding Defendant’s argument about wasted time,
“pretty good,” the issue remains as to whether Stander‘s behavior affected Plaintiff’s ability to work. Plaintiff has
brought forth sufficient facts for a reasonable juror to conclude that her work performance was affected by Stander‘s
behavior and that the work environment was objectively hostile.
2. Subjectively Severe or Pervasive
E.D.Ky.,2012.
Bradford v. Department of Community Based Services, Kentucky
Slip Copy, 2012 WL 360032 (E.D.Ky.), 114 Fair Empl.Prac.Cas. (BNA) 668
END OF DOCUMENT