• September 10, 2012

This past week, the case of Lissa Cottrell against Costco was set to go to trial before Chief Judge Michael J. Davis (D. Minn.)not her claims for sexual harassment, just her claim for “reprisal/retaliation discrimination” (i.e., suffering an adverse employment action due to an employee’s invocation of the employee’s rights).

What happened to her sexual harassment claim?  Judge Davis, recognizing the clear holdings in Eighth Circuit case law, correctly threw that claim out on summary judgment.  

From Judge Davis’ ruling on Costco’s summary judgment motion:

 A review of cases from this circuit demonstrates how difficult it is to meet the high standard governing claims of hostile work environment.  For example, … the Eighth Circuit [has] held that rumor‐spreading that the plaintiff was having an affair was not so severe or pervasive that it met the high threshold for a hostile work environment… In another case, the Eighth Circuit rejected a hostile environment claim based, inter alia, on allegations that a supervisor became hostile toward the plaintiff when she rejected his advances, and told plaintiff before she could be considered for a pay increase or different position, that she would have to draw the planter he kept in his office, ‘that was shaped like a slouched man wearing a sombrero. The planter had a hole in the front of the man’s pants that allowed for a cactus to protrude.’ … The court found that although the supervisor’s conduct was ‘boorish, chauvinistic, and decidedly immature, [] we cannot say they created an objectively hostile work environment permeated with sexual harassment.’…[In another case, the Eighth Circuit has found that] allegations that co‐worker ‘made sexually inappropriate comments, including about [plaintiff’s] breasts on several occasions, and that [a co‐worker] told [plaintiff] that he was fixing a table so she could ‘strip dance on it’ did not establish actionable harassment)….[In another case, the Eighth Circuit found that ] allegations that over a period of three months a co‐worker made numerous comments about plaintiff’s body, touched her hair, wiped water off her pant leg, repeatedly suggested she leave her boyfriend and go on dates with him, telephoned her at home, and offered to buy her a drink and give her a ride home, not actionable harassment. Finally, the Eighth Circuit recently reaffirmed that as to incidents of isolated propositioning, ‘[m]ore than a few isolated incidents are required’ to support a hostile work environment claim.

In this ugly litany, it is, of course, the cactus drawing assignment that stands out the most.

The Court (more specifically, a panel of three male judges) found that they could not find that such “boorish, chauvinistic, and decidedly immature” conduct (which was one of several such incidents) “created an objectively hostile work environment permeated with sexual harassment.”

Query: How many three-women panels do you think would have come out the same way?  How many of these judges have been subjected to attention from sexual aggressors? How can it be that we can permit such “boorish” conduct as “not [creating an] objectively hostile work environment”?

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