Sexual Harassment Hostile Work Environment Claim Survives Summary Judgment; Alleged Conduct Included Bodily Contact and Vulgar Comments

In Honey v. Dover Downs, Inc., No. C.A. No. 19-1646-TMH, 2021 WL 6197082 (D.Del. Dec. 9, 2021), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim.

The court summarized the five elements that a plaintiff must prove in order to establish a hostile work environment claim under Third Circuit law:

1) the employee suffered intentional discrimination because of his/her sex,

2) the discrimination was severe or pervasive,

3) the discrimination detrimentally affected the plaintiff,

4) the discrimination would detrimentally affect a reasonable person in like circumstances, and

5) the existence of respondeat superior liability.

[Paragraphing added.]

Defendant raised three grounds for summary judgment. As to its first argument – that “no reasonable jury could find that any alleged discrimination was severe or pervasive” – the court explained:

Dover Downs focuses on frequency, arguing that the factual record details only two allegations of sexual harassment2 and that, even if true, two instances are not enough to be “persistent.” D.I. 35, at 13–14. But that is not the applicable standard: While the Third Circuit used to require discrimination to be “pervasive and regular,” Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990), superseded in part by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1072, it has since clarified that “[t]he correct standard is ‘severe or pervasive.’ ” Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017).
This means the plaintiff does not need to allege multiple sexual harassment incidents. Even “one severe incident may be enough to create a hostile work environment.” Komis v. Sec’y of U.S. Dep’t of Lab., 918 F.3d 289, 293–94 (3d Cir. 2019). “[T]he complained of discriminatory conduct was … physically humiliating, and much more than a mere offensive utterance. [Mr.] Webb made bodily contact with [Ms.] Honey, and the vulgar comments made by both gentlemen were of the type that no female employee should have to tolerate.” D.I. 40, at 11. Here, a reasonable jury could find that Mr. Webb’s and Mr. Ford’s harassment of Ms. Honey was severe enough to create a hostile work environment.

The court rejected the case law cited by defendant on this point as “largely fact-specific”, noting that one case clarified that “a single act of harassment because of sex may be sufficient to sustain a hostile work environment claim.”

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