Thursday, December 23, 2010
Cross v Prairie Meadows Racetrack & Casino, Inc, ___F.3d____(8th Cir, August 12, 2010), demonstrates that it is not easy to establish a cause of action for sexual harassment. Here, the allegations did not rise to the level of a hostile work environment. Additionally, plaintiff could not establish that the casino knew or should have known about other alleged incidents of harassment that she failed to report.
The plaintiff worked as a parking valet. She claimed that a fellow valet, who was male, sexually harassed her via unwanted touching and sexual comments. In addition, she claimed two of her supervisors contributed to a hostile work environment by engaging in unwanted touching and making derogatory comments about women and sexual jokes. She did not report a number of these incidents to management or HR.
The Eighth held that the reported harassment was not so severe or pervasive that it met the “high threshold” for a hostile work environment. The employee reported four discrete incidents over a period of two years, noted the court. First, she complained to a traffic supervisor that the coworker had grabbed her hair and pulled her out of the valet shack. Second, she reported that the coworker brushed the back of his hand across her breast in a purported effort to wipe something off her shirt. Third, she alleged that he responded in an angry and physically threatening manner when she rebuffed his request that they be “more than friends.” Finally, she reported that the coworker spread a rumor that she had performed oral sex on him. Taken together, these four incidents over two years were “insufficient to establish that the work environment was so permeated with discriminatory conduct that it altered a term, condition, or privilege of her employment,” the court determined.
Even if these incidents had risen to the level of a hostile work environment, the employee failed to show that the casino did not adequately respond to the complaints. The traffic supervisor heard conflicting reports regarding the first incident, and his admonition to the valets to avoid horseplay was sufficient action under the circumstances, the court concluded. Although the traffic supervisor “would have been well advised” to take the second and third incidents more seriously, those incidents were isolated acts, rather than repeated ongoing instances of misconduct, the court explained. Moreover, because she had been given a copy of the casino’s sexual harassment policy upon hire, the employee knew there were additional avenues of relief that she could pursue if she was unsatisfied with the response to her complaints, but she failed to pursue them.
Mitchell H. Rubinstein