Non-discriminating Behavior Can Fuel Sex Harassment Claim

An employee’s offensive behavior that is not in itself discriminatory can nevertheless fuel employers’ liability for sexual harassment when it is mixed with discriminatory behavior.  In Rosario v. Department of the Army (click to read), there was evidence that throughout a two-year period, the plaintiff’s supervisor complained about the plaintiff’s “appearance on a daily basis, regularly drew the attention of her co-workers to her body and undergarments, shadowed her closely when she interacted with patients, challenged her decisions, mocked her when she spoke to him and, on occasion, described her as a street woman to other employees and criticized her to doctors and patients.”  The First Circuit Court of Appeals suggests that the supervisor’s discriminatory, gender-based actions would not have, in and of themselves, been “so severe or pervasive” to have “altered the terms or conditions” of the plaintiff’s employment—the standard for a hostile work environment claim.  However, the supervisor was also shown to be “a rude man that lacked courtesy and professionalism,” who lacked respect toward women and would “just intimidate them.”  The First Circuit reminds employers that “as we have noted, such acts may be added to the mix in assessing a hostile work environment claim.”  “The fact that certain of the complained-of conduct appeared to have no sex-based connotation at all – for example, throwing her food away and removing items from her desk – does not diminish the force of the evidence indicating gender-based animus.” The “record as a whole would thus permit a reasonable jury to conclude that Rosario was exposed to harassment that differed in both kind and degree from that imposed on male employees.”


While most employers know they should prevent discrimination in the workplace, many do not realize that a closer eye should be kept on rude or offensive employees suspected of discriminatory behavior.  Intimidating or socially-inappropriate behavior can turn minor discriminatory conduct into full-blown hostile work environment sexual harassment liability.  Employees who feel they have been subject to such behavior may have a claim under Title VII on the Civil Rights Act of 1964 and state law equivalents.  Contact Muller Law to see how this case applies to your particular situation.