In Abbt v. City of Houston, 2022 WL 764999 (5th Cir. March 11, 2022), the court, inter alia, reversed the lower court’s award of summary judgment for defendant on plaintiff’s claim of hostile work environment sexual harassment asserted under Title VII of the Civil Rights Act of 1964.
In sum, this case arose from the viewing, by plaintiff’s co-workers, of an intimate nude video of plaintiff. In awarding summary judgment to defendant, the district court stated, inter alia, that plaintiff’s claim failed because she could not show that she was subject to a “hostile work environment”, but merely that she was “angry and embarrassed.”
The Fifth Circuit disagreed. From the decision:
There is at least a genuine dispute of material fact for each element of Abbt’s sexual harassment claim. It is undisputed that Abbt, a woman, is a member of a protected class. It is also undisputed that Abbt experienced unwelcome harassment—Abbt did not send Barrientes the video and did not give either Barrientes or Elliott permission to watch it. It is important to note that the unwelcome harassment was not limited to the theft of the video. Instead, the harassment includes the affirmative decision by Barrientes and Elliott to repeatedly view Abbt’s intimate video without her permission. Abbt has presented evidence that both Barrientes and Elliott watched the video at work, watched it multiple times, and watched it with the full knowledge that it depicted their female subordinate nude. The full framing of the harassment at issue in this case includes the repeated viewing of the video, not just its theft.
Given that framing, the harassment (the repeated viewing of the video) was based on sex, and therefore was based on Abbt’s status as a member of a protected class. The textbook example of harassment stems from actions across genders based on sexual desire. The Supreme Court has therefore noted that “[c]ourts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). It is for this reason that the Supreme Court needed to clarify that “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.” Id. (emphasis added). The Supreme Court has made clear that a sexual motivation is not necessary to find sexual harassment; but even though such a motivation is not necessary, it is still clearly sufficient. And a jury could surely find that the decision of two men to repeatedly watch a nude video of their female coworker was motivated by the fact that she was a woman. The harassment was based on sex.
The next element to consider is whether the harassment was severe or pervasive enough to create an abusive and hostile work environment and alter a term or condition of Abbt’s employment. This element is disjunctive—if a single instance of the conduct (here, the viewing of the video) was severe enough on its own to create a hostile work environment, then it need not have been pervasive for this element to be satisfied. Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 435 (5th Cir. 2005) (“The Supreme Court has stated that isolated incidents, if egregious, can alter the terms and conditions of employment.”). This prong of the test has both an objective and subjective element—we consider whether a reasonable person would have found that the harassment created a hostile work environment and also whether the harassment created a hostile work environment for the plaintiff herself.
Abbt has presented sufficient evidence to create a genuine dispute of material fact as to this prong. First, the complained-of conduct is sufficiently severe to objectively create a hostile work environment. Looking to “all the circumstances,” Faragher, 524 U.S. at 787, 118 S.Ct. 2275 (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367), a reasonable person could consider the repeated viewing of her intimate, nude video by her coworkers to be sufficiently severe to constitute sexual harassment. Such invasive and violative conduct goes well beyond a “mere offensive utterance” and rendering it actionable under Title VII does not risk turning the statute into a “general civility code.” Id. at 787, 118 S.Ct. 2275. Barrientes and Elliott’s conduct was not only a clear violation of Fire Department policy but, in Barrientes’s case, was also potentially a crime under Texas law. See TEX. PENAL CODE § 21.15(b)(3) (criminalizing the distribution of nude photographs or videos of a person “without the other person’s consent and with intent to invade the privacy of the other person”). The conduct was objectively offensive, and could have objectively created a hostile work environment.
In addition, the conduct was subjectively offensive to Abbt and affected a term or condition of her employment. After learning that Barrientes and Elliott had repeatedly watched an intimate video of her nude, she developed PTSD and was unable to return to work. Abbt additionally did not know, and still does not know, how far and wide the video had spread throughout the Fire Department. What she did know was that, as a firefighter living in a firehouse, she would be required to eat, sleep, and live with other firefighters while on duty. Therefore, she would be returning to a work environment where she could be sleeping and living next to a person who had seen her intimate video. She would be returning to a work environment with no assurances that she would not have to work with or sleep next to Barrientes, who she knows had repeatedly watched her nude video. She would be returning to a work environment with no guarantees that copies of her intimate video were not still being shared amongst her coworkers. These possibilities stem directly from the harassment at issue, and subjectively affected Abbt’s employment by preventing her return to work.
The district court discounted these possibilities by noting that “it was [Abbt’s] knowledge of what had happened that led to her purported PTSD, not the actual conduct of her co-workers viewing the video.” But that fact does not control; we decline to hold as a matter of law that a person must contemporaneously experience harassment for it to be actionable under Title VII. As discussed above, the term or condition of Abbt’s employment that was affected by the harassing conduct was her inability to return to work. A term or condition of her employment was thus affected, as this is not a case where the victim had already retired or left the company, which would leave no possibility that a term or condition of employment could ever be affected.
The court also held that plaintiff presented sufficient evidence to create a genuine dispute as to whether the City knew or should have known about the harassment, noting, inter alia, that “the City is hard pressed to explain why a supervising employee’s knowledge of harassment should not be imputed to the City when its own policy placed an affirmative duty on him to pass such information up the chain of command.” [Cleaned up.]