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Supervisor’s derogatory remarks do not rise to the level of same-sex harassment


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ckarnes

By Courtney Karnes


An employee filed a plethora of claims against her employer and supervisor, including same-sex sexual harassment. The employee alleged that her supervisor made a series of derogatory remarks that constituted sexual harassment. Specifically, the employee alleged her supervisor told her that she did not wear bras or underwear, openly exposed her breasts to the employee, asked the employee whether she was wearing a bra or underwear, indicated that she could “wring water out of her bra,” and, after gesturing towards the employee’s breasts, called them “big hoobie boobies.”  The employee told her supervisor that her comments were inappropriate, but the supervisor simply stated, “Honey, that’s just how I am.” Additionally, during a conversation about same-sex couples, the employee’s supervisor stated if she were a lesbian, she would date her lesbian friend, despite having two children with her ex-husband.

To prevail on a hostile work environment claim, a plaintiff must show that she was a member of a protected class, she was subject to unwelcome harassment, the harassment is based on her membership in a particular class, the harassment created a hostile work environment and the employer failed to take reasonable steps to prevent and correct harassing behavior.  Further, the workplace must be “permeated” with discrimination that is severe or pervasive enough to alter the employee’s conditions of employment. The court must take all circumstances into consideration, including, but not limited to, the frequency of the discriminatory conduct, the severity of the conduct, the level of threat or humiliation, and whether the conduct unreasonably interferes with the employee’s work.

To prevail on a hostile work environment claim based on same-sex sexual harassment, the plaintiff must satisfy additional criteria.  Specifically, the plaintiff must show the harassment was “based on sex” by demonstrating that the harasser is acting out of sexual desire, or that the harasser is motivated by general hostility to the presence of women in the workplace, or if the plaintiff can offer “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” The inquiry is based on “common sense” and “appropriate sensitivity to social context.”

The employee did not provide sufficient evidence to satisfy her burden. The court held that occasional comments about breasts and undergarments did not sufficiently evidence sexual desire.  Further, during the conversation about same-sex couples, the supervisor expressly stated she was not a lesbian. The court took into account that the plaintiff stated that the supervisor never propositioned her, never attempted to touch her, and never alleged that her supervisor was attracted to her.

The court concluded the employee failed to meet other requirements as well and that the supervisor’s conduct was not severe or pervasive enough to rise to the level of harassment because the employee could not indicate how frequently her supervisor made derogatory comments.  According to the court, these comments were “teasing” and did not rise to the level of harassment.



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