Let's play claim or no claim. An employee (later the plaintiff) alleges that she sees her supervisor make close personal contact with another female subordinate, including the supervisor rubbing this co-worker's back and stroking her neck. How often? Several hundred times over a five-month period. The future plaintiff is offended. She alleges other employees chime in, saying they saw the same conduct 10 times to 15 times a day, and they were likewise offended. The employee (aka future plaintiff) also claims to have heard intimate conversations between the two of them. She complains to management and is later fired. She sues, claiming two violations of Title VII: a hostile environment based on sex and retaliation. Claim or no claim?
No claim, according to the U.S. District Court for the Northern District of Texas in Dallas, which sketched out these allegations in its July 23 decision in Kummerle v. EMJ Corp. The court granted the defendant's motion to dismiss on the pleadings, noting that the plaintiff failed to alleged that the purported conduct was more demeaning and offensive to females than to males. After all, the basis of a hostile environment claim based on sex is that the sexes were exposed to different conditions of employment, not merely offensive conditions of employment.
In an apparent effort to cha-cha around this deficiency, the court noted that the plaintiff alleged in the suit that a “reasonable woman” would have been offended by the conduct she observed because of the long history of “subjugation” of women in the workplace.
In a gracious turn of phrase, the court characterized Kummerle's reliance on history as a “nuanced” understanding of the law but one that did not comport with the law (which looks only to a reasonable-person standard, not a reasonable-woman standard) or comport with day-to-day practicalities. “If the court were to uphold Kummerle's theory in this case, it would of necessity impose on employers . . . an obligation to enforce a general civility code for the workplace, which Title VII does not require,” wrote the court.
What about the retaliation claim? Because what Kummerle opposed as a violation of Title VII wasn't actually a violation, she was precluded from asserting a retaliation claim. It’s a good result.
So, what should plaintiffs lawyers do in similar situations? I’d recommend not focusing on the hostile environment claim — even go ahead and concede that there is no such claim. Instead, focus in on the reasonableness of the plaintiff's beliefs. Argue that she is not a lawyer and does not understand the nuances of harassment law (which even confuse lawyers) and that the issue is not whether the court gives her an A+ in employment law but whether she scrapes by with a C. Just saying.