Once Could Be Enough for Sex Bias
7th Circuit says single act can create hostile environmentBy DARRYL VAN DUCH
The National Law Journal
September 13, 1999
Chicago--In a case of first impression, a split panel of the U.S. Court of Appeals for the 7th Circuit has ruled that a single act of physical aggression by a male against a female co-worker--even though the attack does not involve sexual contact--can be enough to sustain a hostile work environment lawsuit under the federal sex discrimination laws. Smith v. Sheahan, No. 98-2445.
The defendant, a jail guard, had allegedly battered the plaintiff, a fellow officer, during a 1992 on-the-job encounter. The plaintiff's arm was twisted so hard that she sustained ligament damage requiring surgery. Although the conduct was accompanied by gender-based epithets, no explicitly sexual contact occurred.
In December, the 10th Circuit in Lockhard v. Pizza Hut, 162 F.3d 1062, also ruled that one instance of physical violence could sustain a hostile work environment claim, said lead plaintiff's attorney Paul M. Weltlich, a partner at Chicago's Lawrence Kamin Saunders & Uhlenhop.
But in that case, he noted, the female victim, a waitress, was allegedly fondled and bitten on her breast by a male customer--after telling her male supervisor that she had been sexually threatened by her eventual attacker.
According to Judge Diane P. Wood, who wrote the Aug. 27 majority opinion for the 7th Circuit, it is not necessary that the offensive conduct complained of be "inspired by sexual desire." Under the Supreme Court's 1998 opinion in Oncale v. Sundowner Offshore Services Inc., 118 S. Ct. 998, she wrote, the discriminatory conduct need only be somehow related to the victim's sex. In this case, Judge Wood wrote, the defendant's intent to discriminate could be inferred, not just by his singular act of violence, but also by his history of verbally abusing only female colleagues. Moreover, the judge emphasized, the defendant had never been disciplined and it was the plaintiff, rather than the defendant, who was transferred to a job she deemed inferior.
"In saying that the 'more serious the harassment, the less pervasive it has to be to be actionable,' the 7th and 10th Circuits have been entirely consistent with the Supreme Court's earlier hostile environment rulings," said Mr. Weltlich.
In dissenting, Judge William J. Bauer wrote that this case concerned common law battery and did not amount to federal job discrimination. A lawsuit accusing "an absolute boob of punching out a weaker person" may be the "mark of a coward," opined Judge Bauer, but such conduct is not actionable under Title VII of the Civil Rights Act of 1964.
A representative of the Cook County state's attorney's office, which handled the appeal for the defense, said a petition for rehearing based largely on Judge Bauer's dissent will be filed shortly.
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