The old saying that “the devil is in the details” applies, with especial force, to hostile work environment sexual harassment claims. That said, as one court recently explained, the work environment need not be “hellish” in order to make out a claim.
In Brinson v. Eagle Express Lines, Inc., No. 18-cv-3733, 2023 WL 6312400 (N.D.Ill. Sept. 28, 2023), the court, inter alia, denied defendant’s motion for summary judgement on plaintiff’s sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
Initially, the court determined that there was an issue of fact as to whether the harassment occurred “because of” plaintiff’s sex (male), citing, among other evidence, the alleged harasser’s comment that plaintiff’s jeans “look real good on” him followed by asking “want to come be with me, want to come to my house?” – the latter of which, held the court, “can reasonably be interpreted as an explicit proposal for sexual activity.”
As to whether the alleged harassment was “severe or pervasive”, the court explained:
Eagle Express argues that no reasonable jury could find that Berry’s harassment was severe or pervasive under this standard. Eagle Express notably argues that the harassment “was not the ‘hellish’ environment necessary to establish a hostile work environment.” (Dkt. 35 at 11.) Eagle Express, however, flatly ignores multiple directives from the Seventh Circuit that “the environment need not reach the point of ‘hellishness,’ …. The Supreme Court standard dictates that the discrimination must be only so severe or pervasive so as to affect the terms and conditions of employment. This is a far cry from hellish.” John v. Advoc. Health and Hosps. Corp., 892 F.3d 887, 901 (7th Cir. 2018) (citing Harris, 510 U.S. at 21–22); see also Milligan-Grimstad, 877 F.3d at 714 (“Ten years ago, we told litigants loud and clear that ‘hellishness’ is not the touchstone of a hostile work environment.”) (citation omitted).
The Court notes that Eagle Express denies that any harassment occurred at all. Thus, there is certainly a genuine dispute as to whether any harassment occurred, let alone whether it was severe or pervasive. Nonetheless, Eagle Express argues that the harassment Brinson alleges was neither severe nor pervasive as a matter of law because it “consists of only three incidents of relatively mild comments,” and “Brinson does not allege he was touched by Berry, or that he was threatened by Berry, or that he was concerned for his safety at any point.” (Dkt. 35 at 9, 11.) The Court finds, however, that a reasonable jury could conclude that Berry’s behavior and repeated comments about Brinson’s body and sexual overtures were humiliating to the point that they altered the conditions of Brinson’s employment. Further, Brinson testified that the last instance of sexual harassment ended with Berry in a “full-blown rage” to the point that other employees physically restrained Berry from Brinson. (Pl.’s Dep. Dkt. 44-1 at 73:2–3.) Indeed, Eagle Express determined Berry violated its anti-violence policy during the last instance of alleged sexual harassment. (See Thiele Decl. Dkt. 36-1 ¶ 12; Hough Decl. Dkt. 36-2 ¶ 14.) Given the factual record, there is enough evidence for a reasonable jury to conclude that the repeated sexual solicitations, comments about Brinson’s body, and ensuing altercation were sufficiently severe or pervasive to establish a hostile work environment.
The Seventh Circuit has also directed courts to consider the broader context of the alleged harassment beyond the pages of deposition transcripts and declarations:
What to make of the harasser’s behavior … is a task that requires one to weigh the tone of his words and deeds and a host of other intangibles that the page of a deposition or an affidavit simply do not reveal. This is a task for the factfinder after trial, not for the court on summary judgment.
[Cleaned up.]
The court concluded that, “[g]iven the factual record, the question of whether Berry’s conduct was ultimately severe or pervasive is most appropriately answered by the jury” and that defendant was therefore not entitled to judgment as a matter of law on this element of plaintiff’s claim.