Category Archives: Sexual harassment

Hostile work environment, Sex Discrimination, Sexual harassment, Title VII of the Civil Rights Act of 1964, WV Human Rights Act

The Evolving Standard for Hostile Work Environment Claims

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When employees say their workplace is “toxic” or “hostile,” they’re often using the term loosely—maybe it’s office drama, an annoying boss, or just a generally tense atmosphere. But in employment law, a hostile work environment has a very specific legal meaning. And as courts have refined the standard over the years, the line between what’s actionable and what’s just unpleasant has gotten sharper (but not necessarily clearer).

For both employers and employees in West Virginia, it’s important to understand what actually qualifies as a hostile work environment under the law, how these claims are proven, and what the potential pitfalls are in litigation. Spoiler alert: just being a jerk isn’t necessarily illegal.

What Is a Hostile Work Environment?

Under both federal law and West Virginia law, a hostile work environment occurs when an employee is subjected to discriminatory harassment that is severe or pervasive enough to alter the conditions of employment and create an abusive working environment.

Continue reading The Evolving Standard for Hostile Work Environment Claims →
Pregnancy discrimination, Sex Discrimination, Sexual harassment, Title VII of the Civil Rights Act of 1964, WV Human Rights Act

Workplace Harassment: What Employers and Employees Need to Know

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Workplace harassment is a serious issue that can lead to legal trouble for employers and create a toxic work environment for employees. While most people think of harassment in terms of sexual misconduct, the law covers a much broader range of behaviors. Understanding what constitutes workplace harassment and how to handle it is crucial for both employers and employees.

What Is Workplace Harassment?

Harassment is defined as unwelcome conduct based on race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information (42 U.S.C. §2000e-2(a)). It becomes illegal when:

  • Enduring the offensive conduct becomes a condition of continued employment, or
  • The conduct is severe or pervasive enough to create a hostile work environment (Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986)).

Harassment isn’t just about inappropriate jokes or unwanted advances—it can include threats, intimidation, offensive images, or even workplace policies that disproportionately affect certain groups.

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Hostile work environment, Settlements, Sexual harassment, Taxes, Title VII of the Civil Rights Act of 1964

Congress against sexual harassment, part 1: Taxes

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This article is the first of 3 parts to cover 3 Acts of Congress directed at expanding the rights of sexual harassment and abuse victims.

The series of 3 federal laws on sexual harassment claims

  • Congress first in 2017, with the Tax Cuts and Jobs Act (“TCJA”), limited employer tax deductions for settlements of sexual harassment and abuse cases where the settlement agreement included a nondisclosure agreement. That’s what this article is about.
  • Congress next in March 2022 passed the  Ending Forced Arbitration of Sexual Assault and Harassment Act of 2021 which invalidates arbitration agreements over sexual harassment and abuse claims, where the agreement is signed before a dispute arose. That’s my second article in this series.
  • Congress then in December 2022 passed the Speak Out Act which invalidated nondisclosure and non-disparagement agreements in sexual harassment and abuse claims where the agreements were procured before a dispute arose. That’s my third article in this series.
Continue reading Congress against sexual harassment, part 1: Taxes →
Hostile work environment, Prompt remedial action, Result for Employee, Sex Discrimination, Sexual harassment, Summary Judgment, Title VII of the Civil Rights Act of 1964

Single act may create hostile work environment, according to Seventh Circuit in Berry v. Chicago Transit Authority

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A few days ago, I posted my article on PAR Electrical Contractors, Inc. v. Bevelle , in which the West Virginia Supreme Court ruled that a single episode involving multiple uses of the N-word could create a racially hostile work environment.

The US Court of Appeals for the Seventh Circuit just released an opinion in Berry v. Chicago Transit Authority, 618 F.3d 688 (7th Cir. 2010), which raises the similar issue: Can a single instance of sexual harassment create a hostile work environment? And the answer was yes, depending on the circumstances.

Ms. Berry is Sexually Harassed in a Single Incident

Cynthia Berry was an employee at the Chicago Transit Authority. She was on her break and sat at a picnic style table with three male co-workers. A fourth male co-worker, Philip Carmichael, had followed her to the picnic area and ordered Ms. Berry to get up from the table. Offended by Mr. Carmichael’s “commanding tone”, Ms. Berry remained seated. Mr. Carmichael then sat down and “straddled the bench” so he was facing one of the male co-workers at the picnic table, and so that Mr. Carmichael’s back was close to Ms. Berry. The other three male co-workers got up from where they were seated at the picnic table and moved to the other end of the table. Then:

Berry says Carmichael remained where he was seated and began rubbing his back against her shoulder. She jumped up, told him not to rub himself against her, and sat down next to Hardy at the other end of the table. At this point,
Berry says, Marshall began telling her to get up from the table again. Not wanting Marshall to think he could order her around, she remained seated, but began rubbing her temples to compose herself. According to Berry, she next felt Carmichael grabbing her breasts and lifting her up from the bench. Holding her in the air, he rubbed her buttocks against the front of his body—from his chest to his penis—three times before bringing her to the ground with force. Berry landed off-balance, with only one leg on the ground, and says Carmichael then pushed her into a fence. Upset and wanting to avoid any men, she lay down in a bus for the rest of her shift.

Continue reading Single act may create hostile work environment, according to Seventh Circuit in Berry v. Chicago Transit Authority →
Americans with Disabilities Act, Disability discrimination, Drew Capuder, Family and Medical Leave Act (FMLA), Hostile work environment, Sexual harassment

Drew Capuder will be speaking on disability and sexual harassment issues in Morgantown Oct. 20, 2010

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I will be speaking (and presenting articles)  at a seminar sponsored by Sterling Education Services on October 20, 2010 in Morgantown, West Virginia, entitled “Fundamentals of Employment Law”.

I will be speaking (and presenting articles) on “Sexual, Racial, and Other Harassment in the Workplace” and “ADA and FMLA Update”.

Here is the full agenda, and here is the faculty information. The seminar will provide around 6-8 hours of continuing education credit for lawyers (I don’t know the exact number, but the seminar is a full day).

You can register for the the seminar online. For further information, you can contact Sterling, and their number is 715-855-0498.

Harless wrongful discharge, Hostile work environment, Intentional infliction of emotional distress, Medical Industry Litigation, Pleading requirements, Result for Employee, Retaliation claims, Sex Discrimination, Sexual harassment, WV Human Rights Act, WV Supreme Court

Sorry boss, I didn’t know you were having sex in the office!!

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The West Virginia Supreme Court recently issued an opinion dealing with one of those stereotypically awkward situations, where an employee allegedly stumbles into a room where the boss is having sex with a co-worker. The decision was  Roth v. DeFeliceCare, Inc., 226 W. Va. 214, 700 S.E.2d 183 (June 8, 2010) (per curiam). It was a 3-2 decision, in which the 3-vote majority consisted of Justices Robin Davis, Margaret Workman, and  Thomas McHugh. Justices Menis Ketchum and Brent Benjamin dissented, and Justice Ketchum wrote a dissenting opinion.

The Facts–Sex at Work

These are the facts according to the complaint in the lawsuit: Tricia Roth was a respiratory therapist working at DeFeliceCare, Inc. in Ohio County, West Virginia, and she was about to go on vacation. She was directed by Leslie DeFelice (the male boss/owner) to come to work sometime during the weekend preceding her vacation in June 2006. She was not told a specific time to come to work during that weekend. When she came to work as ordered, she “observed Defendant [Leslie] DeFelice and/or Michelle Kelly partially clothed and in a compromising position”. Mr. DeFelice instructed Ms. Roth to go into a conference room and wait–meanwhile Mr. DeFelice and the other employee got all their clothes back on. Mr. DeFelice then talked to Ms. Roth and told her to forget about what she had just seen, and threatened Ms. Ross with the loss of her respiratory therapy license and the loss of her employment.

Ms. Roth then went on vacation. When she got back from vacation and returned to work, she had a meeting with Mr. DeFelice that didn’t go well. Ms. Roth told Mr. DeFelice that she hadn’t told anyone about his sexual encounter at work. Mr. DeFelice proceeded to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal theories centering around sex discrimination and sexual harassment, and–bada bing!–the case promptly got dismissed.

Ms. Roth’s complaint (the document which starts the lawsuit and describes the plaintiff’s allegations) focused on the sexual incident I have described above, but also made allegations about other sexual harassment–I will discuss those details below.

Continue reading Sorry boss, I didn’t know you were having sex in the office!! →
Federal Cases (but not US Supreme Court), Fourth Circuit, Hostile work environment, Medical Industry Litigation, Result for Employer, Sexual harassment, Summary Judgment, Title VII of the Civil Rights Act of 1964

Can you be sexually harassed behind your back?

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It might be obvious, but it seems a bit difficult to win on a claim for sexual harassment where all of the harassment occurs behind your back (and by “behind your back”, I mean situations where the harassing behavior occurs when the complaining employee is not physically present to experience or hear what is happening).

The Fourth Circuit Court of Appeals addressed this issue in Pueschel v. Peters, 577 F.3d 558 (4th Cir. 2009), in a unanimous decision written by Judge Roger Gregory in which Judges M. Blane Michael and Robert Bruce King joined.

The Fourth Circuit didn’t have much difficulty reaching the conclusion that, for any claim alleging a hostile work environment (including sexual harassment), you can’t succeed if all of the misconduct about which you complain occurred at work when you were not at work.

Twenty-Eight Years of Litigation!!!

This case grows out of an incredibly long history of litigation (including several different lawsuits and appeals (some of which were successful)) filed by Ms. Pueschel against her employer, the Federal Aviation Administration (“FAA”). The litigation started in 1981 and ended with this Fourth Circuit decision in 2009 (I am not kidding, and I am not sure this decision marks the end of all of her litigation).

Continue reading Can you be sexually harassed behind your back? →
Federal Cases (but not US Supreme Court), Fourth Circuit, Medical Industry Litigation, Result for Employee, Sexual harassment, Summary Judgment

Was the boss “merely crude”, or was he sexually harassing her?

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Sexual harassment claims frequently require judges and juries to distinguish between “merely crude” behavior, which doesn’t violate the employee’s rights, and “sexual harassment“, which does. The Fourth Circuit Court of Appeals addressed that issue in EEOC v. Fairbrook Medical Clinic, PA, 609 F.3d 320 (4th Cir. 2010) (opinion at Fourth Circuit’s site), and didn’t have a lot of trouble concluding that the conduct in issue could reasonably be viewed by a jury as sexual harassment, ruling in favor of the employee. One of the key issues was whether the conduct was “severe or pervasive” enough to constitute a “hostile work environment“.  The unanimous opinion was written Judge J. Harvie Wilkinson III, joined by Judges Andre M. Davis and C. Arlen Beam (from the Eighth Circuit).

Doctor on Doctor Harassment at Fairbrook Medical Clinic

Stethoscope Dr. John Kessel was the owner of Fairbrook Medical Clinic in South Carolina, and was accused by a former female doctor at the clinic, Dr. Deborah Waechter, of sexually harassing her. Dr. Kessel was Dr. Waechter’s supervisor. Dr. Waechter worked for him for 3 years and quit, allegedly over a broad range of sexually explicit statements made during most of those 3 years (I’ll discuss the specifics below).

Dr. Waechter’s Lawsuit

Dr. Waechter then filed a charge of discrimination with the EEOC, alleging that Dr. Kessel’s behavior created a “hostile work environment”, and the EEOC then filed suit on behalf of Dr. Waechter against Dr. Kessel’s clinic under Title VII of the Civil Rights Act of 1964.

After discovery was conducted. Fairbrook Medical Clinic filed a motion for summary judgment, and the federal trial judge granted it. The trial judge reasoned that the offensive conduct was “not particularly frequent,” mostly involved “the type of crude jokes that do not run afoul of Title VII,” did not cause Dr. Waechter to miss work or feel “severe psychological stress,” and did not include inappropriate touching or physical threats.

Continue reading Was the boss “merely crude”, or was he sexually harassing her? →
Result for Employee, Retaliation claims, Sexual harassment, US Supreme Court

US Supreme Court Broadens Definition of "Opposition"; for Retaliation Claims; Crawford v Metropolitan Government of Nashville, 1-26-09

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1/26/09: In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 129 S. Ct. 846 (2009), the US Supreme Court unanimously ruled that an employee engaged in protected activity under Title VII‘s retaliation provision by answering an employer’s questions in connection with a sexual harassment investigation started by company rumors about a male supervisor. Justice Souter wrote the majority opinion, joined by Roberts, Stevens, Scalia, Kennedy, Ginsburg, and Breyer. Justice Alito wrote an opinion, concurring in the judgment, joined by Justice Thomas.

Ms. Crawford Responds to an Investigation into Sexual Harassment

USSupremeCourt Here is what happened: Rumors started circulating about sexually inappropriate behavior by a male supervisor, Gene Hughes, at “Metropolitan Government of Nashville and Davidson County” (“Metro”). A human resources employee started investigating, and asked Vicky Crawford whether she had seen any inappropriate behavior by Mr. Hughes. Crawford responded yes, and described several instances of sexually inappropriate behavior. For example, Ms. Crawford had asked Mr. Hughes “what’s up”, and he responded by grabbing his crotch and saying “you know what’s up”. On another occasion, Mr. Hughes grabbed Ms. Crawford’s head and pulled it toward his crotch. The human resources employee talked to two other employees who similarly reported sexually harassing behavior from Mr. Hughes.

Continue reading US Supreme Court Broadens Definition of "Opposition"; for Retaliation Claims; Crawford v Metropolitan Government of Nashville, 1-26-09 →