Article appeared in The Daily Record, Friday July 30, 2004
Context is a critical factor when determining what constitutes a hostile environment in regards to a claim of sexual harassment. Determining what weight should be given to the factor of the type of workplace in which sexual harassment occurs is being defined by current appellate decisions.
The U.S. Court of Appeals for the Second Circuit ruled on June 14 in Dawson v. County of Westchester (2d Cir. No. 03-7858), that seven female corrections officers at a men’s correctional facility can proceed with their claims that a sergeant’s dissemination of sexually explicit letters written about them — presumably by prisoners — led to unwanted sexual remarks by male officers that created a hostile work environment.
The facts are as follows:
In October 1999, two letters were found at the correctional facility and brought to the attention of one of the female officers. The first letter — apparently written by inmates and addressed to all female corrections officers — consisted of a typed document containing degrading, explicit and violent sexual references to certain individual officers, including the plaintiff, and also included an obscene drawing.
The second letter contained similar content and was passed along by one of the female officers to Sgt. Phillip Banks, who apparently requested a copy. The female officers alleged Banks caused the letters to be disseminated throughout the facility. They also contended Banks made various inappropriate remarks to them in connection with the letters.
The female officers further maintained that because of the dissemination of the letters, they were subjected to an onslaught of inappropriate remarks and other conduct from their male co-workers, and supervisors and a diminution of their authority over the facility’s inmates.
Medical treatment was rendered to all of the female officers involved for mental health problems allegedly stemming from the letters and ensuing hostile work environment, with some taking medical leave. They also complained numerous times to officials about the behavior of Banks and others.
After a county investigation, Banks was counseled and transferred to a different division. The female officers sued the county, Banks, and others in the U.S. District Court for the Southern District, asserting claims for sexual harassment and retaliation.
The district court’s opinion notes “plaintiffs’ chosen occupation necessarily places them in the company of prison inmates…[and] as a result, exposure to an occasional ’embarrassing remark or situation’ is to be expected,” the appeals court stated. However, the court added, “the behavior of the prisoners is not and cannot be the benchmark against which to measure the conduct of plaintiffs’ own colleagues.”
The notion that supervisors of plaintiffs, once notified of the remarks, chose to further disseminate the letters and add to the hostile environment by allegedly making inappropriate remarks thereby affecting the plaintiffs’ ability to do their job, could be the basis for vicarious liability.
The focus then is not on the prison setting or the prisoners’ initial actions, but rather on the response of the officials in a supervisory capacity who should have investigated rather than participated in the letters sent to all female correction officers.
The appeals court also found the district court applied an erroneous legal standard by factoring the paid harassment-related medical leave taken by several of the plaintiffs into its liability analysis. The appeals court held if anything, such evidence “cuts in the opposite direction from that suggested by the district court since it tends to show that the plaintiffs suffered emotional repercussions from the harassment.”
An examination of the prevention efforts taken by the prison prior to this incident may enable the prison to raise the affirmative defense since an investigation and corrective action was taken against Banks. However, from a risk management perspective, supervisory personnel need to recognize the consequence of their actions for the prison and for the women who allege that their authority had been diminished over the inmates, thus, affecting their ability to work.
Context determines appropriate behaviors, as does rank!
