to State a Hostile Environment Claim Under Title VII
By Paul M. Weltlich
Most courts have little trouble finding a hostile environment when there are several severe acts of harassment. The difficulty is determining whether an incident can be so severe that even a single episode can support an actionable discrimination claim.
In Smith v. Sheriff of Cook County, No. 98-2445 (7th Cir. argued Dec. 4, 1998), the Seventh Circuit was recently presented with this very issue on appeal. In Smith, a Cook County Sheriff’s Officer was subjected to abusive, derogatory language from a co-worker, which culminated in a single physical assault upon her which caused internal ligament damage and resulted in the harasser’s conviction for criminal battery.
Smith brought suit against the Sheriff under Title VII alleging that the harasser created a hostile work environment. Smith claimed that she was harassed on the basis of her sex, as male officers were not subjected to such treatment. She further alleged that this hostile environment became a condition of her employment and that the Sheriff was aware of the harasser’s propensity to assault female employees, yet failed to investigate properly or take any remedial action.
The Sheriff moved for summary judgment claiming that Smith had failed to establish three elements essential to her claim: that the harasser’s conduct was gender-related; that the battery was not an isolated incident; and that the Sheriff was negligent in his response to the incident.
The District Court determined that Smith had raised a genuine issue of material fact as to the gender bias of the harasser’s treatment of female officers. The lower court even described Smith’s harassment as being "a severe confrontation, involving verbal abuse, threats and ultimately physical violence," and held that when viewed both subjectively and objectively, the harasser’s conduct was excessive.
Nonetheless, the lower court granted the Sheriff’s motion for summary judgment holding that a single physical assault "was not sufficiently severe and pervasive to create a hostile work environment."
In Meritor, the U.S. Supreme Court handed down the well-known standard for analyzing a hostile environment claim, holding that conduct must be sufficiently severe or pervasive to create an abusive working environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). In it’s opinion, the Supreme Court did not require that the harassing conduct be both severe and pervasive to be actionable under Title VII, and federal courts have since emphasized that this standard requires only that such conduct be "sufficiently severe or pervasive" and not both. See Campbell v. Kansas State Univ., 780 F. Supp. 755, 762 (D.Kan. 1991). The more severe an incident is determined to be, the less pervasiveness is required to establish a hostile environment.
The Seventh Circuit Opines That A Single Severe Act Could Be Sufficient
Although the Seventh Circuit has often held that relatively isolated and innocuous incidents do not create a hostile environment, it has not eliminated the possibility that a single incident of harassment, if sufficiently severe, could support an actionable claim. DiCenso v. Cisneros, 96 F.3d 1004, ____ (7th Cir. 1996)("We do not condone [the harassor’s] conduct, nor do we hold that a single incident of harassment never will support an actionable claim.").
Earlier cases from the Seventh Circuit also tend to support the proposition that "a single act can be enough" to create a hostile work environment in violation of Title VII. For example, in King v. Board of Regents of the Univ. of Wis. Sys., 898 F.2d 533, 537 (7th Cir. 1990), the Seventh Circuit held that "although a single act can be enough, generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident."
Further, according to the Seventh Circuit’s holding in Daniels v. Essex Group, Inc., 937 F.2d 1264, ____ (7th Cir. 1991), "the number of instances of harassment is but one factor to be considered," and "an employer cannot rebut a hostile environment claim simply by saying that the number of incidents alleged is too few."
Paul M. Weltlich is an Associate at Lawrence, Kamin, Saunders & Uhlenhop, Chicago. His practice is concentrated in Employment Discrimination and Termination. He received his Undergraduate Degree in 1986 from the University of Illinois and his Law Degree in 1995 from John Marshall. He may be reached at pmweltlich@worldnet.att.net.