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Sexual Discrimination in the Workplace - Hostile Environment

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James Irving
BKK Business Law Newsletter
July 2010

The Fourth Circuit Court of Appeals has overturned the dismissal of a hostile work environment claim, reinstating the complaint brought by the EEOC on behalf of a female physician who was employed by a family medical practice in Hickory North Carolina. The case is EEOC vs. Fairbanks Medical Clinic P.A., decided on June 18, 2010.

Dr. Deborah Waechter claimed that Dr. John Kessel, the sole owner of Fairbrook Medical Clinic, had created a hostile work environment through a pattern of offensive, sexually-related conduct.

Dr. Waechter accepted a position at the Clinic after completing her residency in 2002. According to Dr. Waechter, Dr. Kessel began making sexually-explicit comments to and in the presence of Dr. Waecher soon after she joined the practice. The offensive comments usually related to the male or female anatomy and often employed crude or graphic terms to describe male and female body parts.

These comments sometimes left Dr. Waechter “speechless” and “uncomfortable.” On other occasions, according to Dr. Waechter, Dr. Kessel made unwelcome disclosures about his own sex life, commented on Dr. Waechter’s breasts, showed her revealing photographs and implicitly suggested that they engage in sexual relations. In February 2006, after she had found a new position, Dr. Waechter tendered her resignation. In June 2006, she filed a complaint with the EEOC.

The District Court dismissed the complaint, finding that Dr. Waechter had failed to satisfy the four prong standard necessary to support a hostile environment claim. In order to sustain such a claim, 1) there must be proof that the conduct was unwelcome; 2) that it was based on sex; 3) that the conduct severely or pervasively altered the conditions of employment and 4) created an abusive work environment; and that the conduct was imputable to the employer.

The District Court ruled that Dr. Kessel’s conduct was neither severe nor specific enough to meet this test because his conduct was not particularly frequent, that it mostly involved crude jokes that did not run afoul of Title VII, that Dr. Waecher did not miss work or feel severe psychological stress as a result of the conduct, and because Dr. Kessel’s conduct did not include inappropriate touching or physical threats.

The Fourth Circuit disagreed.

In the District Court, Dr. Kessel argued that his comments weren’t “based on sex” because he habitually made crude and vulgar comments to men and women alike, however the Fourth Circuit concluded that his reputation as a “shock jock” did not overcome the impression that the comments were sex related. Nor was the appellate court persuaded by Kessel’s argument that in a medical profession, tension breaking comments about the human body were to be expected and that the environment at the Clinic could not be judged as objectively hostile considering all the circumstances.

The examples quoted by the court, and assumed to be true for the purposes of the Fourth Circuit’s review, paint a picture of a vulgar, locker room scene characterized by sexually specific and innuendo-laden comments. It also presents Dr. Kessel as a person who thought his comments were essentially harmless and certainly within the realm of business as usual in a small medical practice. Now a jury will consider Dr. Kessel’s arguments. At a minimum, the revelations are highly embarrassing to the physician. He also now faces the possibility of a significant damages awarded against him.

Even the well-meaning businessman must remember that the office is not a playground and that comments of a sexual nature may well be perceived as offensive. If they persist, the existence of the business could be at risk. Wise business owners adopt and enforce a code of office conduct that prohibits and penalizes sexually-offensive conduct.