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Discriminatory Harassment Requires Pervasive Conduct

ABSTRACT: The Missouri Court of Appeals reverses Judgment on gender-based harassment claim, holding a singular comment is not enough to warrant the discriminatory conduct as pervasive, viewed objectively by a reasonable person.

Beatrice Young sued her former employer, the Missouri Department of Corrections in the Circuit Court of Jackson County, alleging discrimination, harassment, and retaliation based on her race, sex, and national origin. After a five-day trial, a jury awarded Young actual and punitive damages, and attorney’s fees, for gender-based workplace harassment and retaliation. The DOC appealed.

Young began working for the DOC as a Corrections Officer I, providing security to prisoners and prison visitors, conducting inmate searches and counts, and supervising prisoner movement and activity. Four years later, Young was promoted to Corrections Officer II, now ranking Sergeant, and was transferred to the Kansas City Reentry Center. There, a subordinate Corrections Officer I who was unhappy with Young’s supervisory directives, crudely complained about Young, making a sexually demeaning comment to other employees. The explicit comment came to light when a co-worker made an internal complaint against the Corrections Officer I who made the comment.

A successful claim of a hostile work environment requires the plaintiff show: (1) she is a member of a group protected under the Missouri Human Rights Act; (2) she was subjected to unwelcome harassment; (3) the plaintiff’s membership in the protected group was a contributing factor in the harassment; and (4) a term, condition, or privilege of the plaintiff’s employment was affected by the harassment.

On appeal, the DOC only challenged the sufficiency of Young’s evidence regarding the fourth element of a sexual harassment claim. In Matthews v. Harley-Davidson, the Missouri Supreme Court clarified that “harassing conduct must be severe and pervasive enough to create a hostile or abusive working environment as viewed subjectively by the claimant and as viewed objectively by a reasonable person.” The hostility of an environment is analyzed by the totality of the circumstances, including the frequency and severity of the harassing behavior, the extent to which it was physically threatening or humiliating, and whether it unreasonably interfered with the plaintiff’s work performance.

When analyzing Young’s sexual harassment claim, the Court ultimately determined Young’s claims were not objectively sufficiently severe or pervasive that it altered the conditions of her employment. While the comment was “undeniably offensive and inappropriate in the workplace,” it was a single comment, made only once. Even though other inmates and employees who learned of the offensive comment expressed sympathy and concern for Young and offered to assist by filing internal complaints against the harassing employee, this singular comment could be construed as “pervasive.”

The Court further observed that there was no evidence to show that the offending comment itself was stated directly to Young or that Young was meant to hear it. Additionally, the intensity of the comment was diminished due to the fact it was made by a subordinate, rather than a superior.

Young’s success depended on further evidence of offensive conduct. She may have been successful if there were additional comments to “describe, invite, or threaten violent or sexual acts.”  For example, in Bracely-Mosley v. Hunter Engineering, the incidents involved direct physical contact or threatened physical contact, which caused the plaintiff to suffer mental and physical conditions that required medical treatment. However, even with threats of violence, a claim still requires “pervasive” harassment, typically associated with “day-to-day harassment” that “poisons and permeates” the work environment.

The Court of Appeals in Young acknowledged that while the behavior in question was unacceptable, “some inappropriate behavior objectively does not rise to the level of actionable harassment as a matter of law.”

While plaintiffs may allege significant facts constituting gender-based harassment, this case reaffirms the notion that conduct must be continually hostile to rise to the level of pervasiveness needed in order to withstand summary judgment or a judgment notwithstanding the verdict. Defendants should be ready to challenge generic allegations that seem to be more of a one-off instance rather than workplace harassment.