Connecticut Federal Court Explores Gender Roles in Sexual Harassment Law

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Sexual harassment law continues to develop at a rapid pace. Two recent cases within the 2nd Circuit, Howley v. Town of Stratford and William Holdsworth and Dobrich v. General Dynamics Corp., further define issues pertaining to gender in hostile work environment claims. A third case, Malik v. Carrier Corp., sheds light on the interplay between sexual harassment investigations and the viability of claims for negligent infliction of emotional distress, while Howley further addresses the proper response to a claim of harassment.

Howley and Dobrich are instructive as to the type of investigation and remedial action that the courts deem insufficient. Both resulted in favorable rulings for the plaintiff.

Malik showed that a proper response to a sexual harassment claim immunized the employer, whereas a deficient response resulted in an adverse court ruling in Howley. In Malik, the 2nd Circuit reversed the judgment for the plaintiff, ruling that the employer's investigation into allegations of gender and sexual harassment against Malik constituted conduct required by federal sexual harassment law and, therefore, in this case, gender could not form the basis for a viable common law negligent infliction of emotional distress claim.

Lessons in Gender Roles From Howley And Dobrich

If there is a unifying theme to Howley and Dobrich, it is that factfinders may be permitted to infer that any harassment even when it does not specifically reference gender or contain sexual content directed at the alleged victim by the alleged harasser is gender based if it follows an initial incident which is plainly gender based.

In Howley, the town's only female firefighter alleged the town discriminated against her based on her sex when it failed to promote her from lieutenant to assistant chief and instead hired a male. Howley further alleged that, after she opposed his admission and that of the new deputy chief to the firefighters' union, one of her coworkers sexually harassed her based on gender on April 12, 1995 in front of a number of her subordinates.

She alleged that the coworker, William Holdsworth, released a profanity-laced tirade against her. Howley also alleged that Holdsworth, using similar obscenities, yelled that he would not apologize to her and said she did not get promoted because she failed to perform sexual favors satisfactorily.

An investigation followed Howley's complaint to her superior officer. It was five weeks before the town completed its investigation and suspended Holdsworthfor a weekend. The town also recommended Holdsworth apologize, but he failed to do so. Howley further alleged that the harassment continued, albeit taking forms other than obscene verbal assault. Although Holdsworth was also a lieutenant, Howley was his superior by seniority. Howley alleged that Holdsworth's continued harassment took the form of insubordination, false statements undermining Howley's authority with other subordinates, and creating safety hazards for Howley.

The District Court granted summary judgment for the town, ruling that the single incident on April 12, 1995 was insufficient to create a hostile work environment. In evaluating the issue, the 2nd Circuit explained that to be successful on her claim, the plaintiff must establish (1) that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment; and (2) that a specific basis exists for imputing the conduct that created the hostile work environment to the employer. The 2nd Circuit concluded that the April 12th incident, on its own, could be one that rational jurors might view as creating a hostile work environment because of its severity.

While it may not be surprising that the court viewed the April 12th incident as sufficiently severe to independently create a hostile work environment, the court also viewed the incidents subsequent to April 12, 1995 as further supporting Howley's claim even though they were not sexual in nature. The court reasoned that [g]iven the contents of Holdsworth's April 12th barrage, a factfinder would be entitled to infer that any harassment Holdsworth directed at Howley thereafter, with or without obscenities, was gender based. The court also had little trouble implicating the employer due to its failure to take appropriate remedial action.

In Dobrich, the plaintiff was the first female in what was previously a rough, all-male environment. Much of what the plaintiff objected to was not directed at her per se, but was merely the continuation of coarse conduct which had been customary prior to there being any female laborers on the site.

The court concluded that there were enough incidents to constitute a hostile work environment and that enough were gender related. As in Howley, however, the court also emphasized that all instances of harassment need not contain explicit sexual references or be sexual in nature to be part of a course of conduct that is actionable under Title VII as long as the offensive speech or conduct is directed at the plaintiff because of her gender.

Intriguingly, in Dobrich, the court noted that employers may be limited by collective bargaining agreements from taking all the remedial action they see fit. In addition, the court, relying on EEOC v. Indiana Bell Tel. Co., stated that an employer should be allowed to introduce evidence to show that it made a good faith attempt to enforce its sexual harassment policy within the restrictions of the labor agreement. In Dobrich, the court noted that the employer had not introduced any such evidence.

Proper Response Is Important

The 2nd Circuit in Malik addressed why the duty to conduct a prompt and thorough investigation into allegations of sexual harassment and to thereafter take appropriate remedial measures trumps the common law cause of action for negligent infliction of emotional distress. The court described the issue as how to ensure that federal policies are not undermined by imposing on employers legal duties enforceable by damages that reduce their incentives to take reasonable corrective action as required by federal law.

Although the court's lengthy description of the intricacies and demands attendant to a proper response to a sexual harassment claim seems to mean it will be extremely rare for a claim alleging negligent infliction of emotional distress arising from a sexual harassment investigation to be successful, the court left that option open.

In Howley, the court deemed the town's investigation and remedial efforts insufficient because it took five weeks to mete out discipline and, when it did, it was only a weekend suspension and a recommendation that Holdsworth apologize. The court emphasized that the town failed to remedy Holdsworth's public attempt to undermine Howley's authority and failed to address the harassment subsequent to April 12th.

In short, Howley, Dobrich and Malik all reinforce the importance of prompt investigative and remedial action. Such action can make all the difference when it comes to determining employer liability.

If you feel you have been mistreated by your employer or in your place of employment and would like to explore your employment law options, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.

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Source- Susan K. Krell and William D. Thompson, THE 2ND CIRCUIT AND NEW SEXUAL HARASSMENT LAW, 26 Conn. Law Trib. 4, (Nov. 13, 2000)