Fourth Circuit Rules for Sexual Harassment Victim

The Fourth Circuit has issued another good decision in favor of employees who are sexually harassed in EEOC v. Fairbrook Medical Clinic. This case involves a family medicine practice in Hickory, North Carolina. Here's the summary: "The Equal Employment Opportunity Commission brought this suit on behalf of Dr. Deborah Waechter against her former employer, Fairbrook Medical Clinic. The agency alleges that Dr. John Kessel, the sole owner of the clinic, subjected Waechter to a hostile work environment because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court held that Kessel’s conduct was not sufficiently severe or pervasive to constitute a hostile work environment. What happened here, however, was not merely general crudity but a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment. After carefully considering these circumstances, we conclude that the EEOC has presented an issue of triable fact and accordingly reverse." Here's more from the opinion:

The main dispute in this case centers on whether Kessel's conduct was sufficiently severe or pervasive to create a hostile work environment. As the Supreme Court has emphasized, "not all workplace conduct that may be described as 'harassment' affects a 'term, condition, or privilege' of employment within the meaning of Title VII." Meritor, 477 U.S. at 67. To be actionable, sexual harassment must be objectively hostile or abusive, and the victim must subjectively perceive it as such.

If this case were merely about the crude or vulgar commentary which is an unfortunate feature of some workplaces, then Fairbrook would be correct to assert that the EEOC has no claim. Title VII, after all, is not "a general civility code." Oncale, 523 U.S. at 81. "[W]hile no one condones boorishness, there is a line between what can justifiably be called sexual harassment and what is merely crude behavior." Ziskie v. Mineta, 547 F.3d 220, 228 (4th Cir. 2008). Activities like simple teasing, offhand comments, and off-color jokes, while often regrettable, do not cross the line into actionable misconduct.

This case involves more than general crudity, however. Waechter's allegations, if proven, show that Kessel targeted her with highly personalized comments designed to demean and humiliate her. In some cases, the remarks seemed intended to ridicule her in the eyes of patients and drug representatives. We have previously recognized that there is a difference between "generalized" statements that pollute the work environment and "personal gender-based remarks" that single out individuals for ridicule. See Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d 179, 197 (4th Cir. 2000). Common experience teaches that the latter have a greater impact on their listeners and thus are more severe forms of harassment.

The fact that this interaction took place at a medical clinic need not negate its severity, as Fairbrook contends. It is true that employees at Fairbrook had clinical duties which are not part of other professions, and it is likewise accurate that some employees, including Waechter, occasionally made off-color remarks. But a plaintiff's claim is not defeated solely because she engages in some crude behavior.

Moreover, we decline to accept the argument that a medical setting, because it deals with human anatomy, is somehow liberated from professional norms. This argument is essentially an effort to exempt medical settings from the requirements of Title VII, notwithstanding the fact that Congress did not do so.

Second, Fairbook argues that Kessel's conduct was not sufficiently severe because it did not cause Waechter to miss work due to stress or otherwise adversely affect her job performance. These factors, while relevant, are not decisive here. "Title VII comes into play before the harassing conduct leads to a nervous breakdown." Harris, 510 U.S. at 22. The fact that a plaintiff continued to work under difficult conditions is to her credit, not the harasser's. Moreover, the fact that Waechter continued to provide quality care to her patients in spite of Kessel's conduct is not dispositive either.

For the reasons above, we conclude that the EEOC has produced evidence from which a reasonable jury could conclude that Kessel's conduct was severe or pervasive enough to create a hostile work environment. This evidence, if proven at trial, indicates that Kessel, who was both Waechter's supervisor and the sole owner of the establishment, crossed the line from general crudity into actionable harassment by subjecting Waechter to a series of sexually graphic and unmistakably personal remarks that made her work environment intensely uncomfortable.