In Schwengel v. Cave Enterprises Operations, LLC d/b/a Burger King of Saukville, 24-cv-558-wmc, 2025 WL 2898381 (W.D.Wis. Oct. 10, 2025), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
The court summarized, and applied, the relevant law as follows:
A plaintiff claiming unlawful sexual harassment under Title VII must show that: “(1) she endured unwelcome sexual harassment; (2) she was harassed because of her sex; (3) the harassment was so severe or pervasive that it altered the conditions of employment and created a hostile work environment; and (4) there is a basis for employer liability.” Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 928 (7th Cir. 2017) (quoting Turner v. The Saloon, Ltd., 595 F.3d 679, 684 (7th Cir. 2010)). Here, the parties do not dispute that Drescher’s conduct was unwelcome or based on Schwengel’s sex. Plaintiff’s claim, therefore, turns on whether Drescher’s conduct created a hostile work environment and whether there is a basis for employer liability as a matter of law.
To determine whether harassing conduct was so severe or pervasive that it altered plaintiff’s conditions of employment and created a hostile work environment, the conduct must be both subjectively and objectively offensive. Swyear v. Fare Foods Corp., 911 F.3d 874, 880 (7th Cir. 2018). Here, the parties do not dispute that Schwengel was personally offended by the conduct. However, defendant argues that Drescher’s conduct was not sufficiently, objectively offensive to create a hostile work environment. To determine whether the conduct was objectively offensive, the court considers the totality of the circumstances. Equal Emp. Opportunity Comm’n v. Vill. at Hamilton Pointe LLC, 102 F.4th 387, 401–02 (2024). Relevant factors include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
Conduct that is “physically threatening” to the plaintiff is more likely to be severe enough to create a hostile work environment if the offending employee “touch[es] her or threaten[s] to touch her.” Scruggs v. Garst Seed Co., 587 F.3d 832, 841 (7th Cir. 2009). This is particularly true when physically threatening conduct is combined with “lewd comments or obscene gestures to [the plaintiff’s] face.” Whittaker v. N. Illinois Univ., 424 F.3d 640, 646 (7th Cir. 2005); see also Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1456 (7th Cir. 1994) (finding issue of fact as to hostile work environment where harasser’s “comments were overtly sexual, and … directed specifically at” plaintiff). Further, where the offending employee repeatedly directs his conduct towards the plaintiff over a prolonged period, the pattern of conduct is more likely to be considered pervasive, such that it creates a hostile work environment. E.g., Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 789 (7th Cir. 2007) (finding sufficient evidence of hostile work environment where at least eighteen sexist or sexual comments were made in less than one year and similar comments were made “very often”); Jackson v. Cnty. of Racine, 474 F.3d 493, 500 (7th Cir. 2007) (“Jackson’s testimony about [the] offensive actions (simulating masturbation, sticking his finger in her ear, kissing her on the lips), coupled with her testimony about his day-to-day behavior [using sexual language], could, if believed by a trier of fact, show pervasive harassing conduct.”). On the other hand, “offhand comments, isolated incidents, and simple teasing do not rise to the level of conduct that alters the terms and conditions of employment.” Passananti v. Cook Cnty., 689 F.3d 655, 667 (7th Cir. 2012).
Assessing Drescher’s pattern of conduct in the light most favorable to plaintiff, a jury could reasonably infer that his conduct was objectively offensive enough to create a hostile work environment under Title VII. See Jackson, 474 F.3d at 500. Specifically, the instance in which Drescher put his hands around Schwengel’s neck, showing her how he could “snap her neck” went well “beyond the sort of casual contact which (if it were consensual) might be expected between friendly co-workers, and manifest[ed] in more intimate, intrusive forms of contact.” Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000). Moreover, Drescher’s comments about grabbing Schwengel’s ponytail in a sexual manner could reasonably be viewed as threatened physical contact also contributing to a general hostile work environment. Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 977 (7th Cir. 2004).
A reasonable jury could also find that Drescher’s specific sexual remarks directed at Schwengel were “more than [ ] casual obscenit[ies].” Hostetler, 218 F.3d at 408. In particular, Drescher allegedly, repeatedly described “hypothetical sexual act[s] between” himself and Schwengel that “could readily be interpreted as [ ] (uninvited) sexual proposition[s],” including remarks about how “he could use his tongue to please her,” “wanted to eat a banana cream pie off her ass,” that she should sit on his face, and that she was “fisted” and “liked it” at a gynecology appointment. Taken together, a reasonable jury could find Drescher had engaged in repeated, unwanted sexual propositioning. Id. In addition to Drescher’s physically threatening behavior and explicit sexual comments directed towards Schwengel, he allegedly, repeatedly referred to her as “booty,” made kissing noises at her in the workplace, and used other crude terms referring to “cum” and genitalia. While less explicit, combined with his other conduct, this misconduct also supports a reasonable inference that Drescher directed repeated, unwanted sexual solicitations at Schwengel. E.g., Jackson, 474 F.3d at 500 (instances of defendant’s most egregious conduct, alongside repeated, lesser misconduct, “could, if believed by a trier of fact, show pervasive harassing conduct” actionable under Title VII).
Under the totality of the circumstances, therefore, a reasonable jury could conclude from the record at summary judgment that Drescher’s conduct went well beyond what was merely inappropriate, instead “objectively transform[ing] the workplace to a degree that implicates Title VII.” Hostetler, 218 F.3d at 808. In particular, a reasonable jury could find that both the severity of Drescher’s conduct itself and the “weight of its repetition over time” altered the terms and conditions of Schwengel’s employment and created an actionable, hostile work environment under Title VII.
The court next turned to the issue of the employer’s liability for the alleged harasser’s conduct. It concluded that “a reasonable jury might infer that plaintiff’s supervisors and managers would have heard and seen enough of Drescher’s misconduct to report the conduct up the ladder to the employee authorized to act on it, giving rise to a finding of defendant’s constructive notice of the hostile work environment she endured.”
In support of this conclusion, the court cited evidence that much of the alleged conduct occurred repeatedly in a shared space, and that the general manager “laughed at” and “egged on” the alleged harasser’s conduct.