In Meints v. City of Wymore, Nebraska, 2022 WL 3088556 (D.Neb. Aug. 3, 2022), the court, inter alia, denied defendant’s motion to dismiss plaintiffs’ hostile work environment sexual harassment claim.
The court explained the law, and its application, as follows:
The plaintiffs have also alleged that the individual defendants’ conduct created a hostile work environment. To prove a hostile work environment sexual harassment claim, a plaintiff must show (1) they were a member of a protected class; (2) they were subject to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) that the employer knew or should have known about the harassment and failed to take appropriate remedial action. The defendants essentially argue that the conduct allegedly attributed to Allington and Schwartz was not sufficiently severe or pervasive to alter the terms, conditions, or privileges of the plaintiff’s employment. The defendants find it significant that no physical contact was alleged to have occurred.
To show that harassment affected a term, condition, or privilege of employment, the harassment must be sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment. The harassing conduct must be extreme to be deemed to effect a change in the terms and conditions of employment. To be actionable, the conduct must be extreme and not merely rude or unpleasant. A sexually hostile work environment must be both objectively and subjectively offensive—one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be offensive. The totality of the circumstances are considered, including the frequency and severity of the discriminatory conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.
At this stage of the proceedings, the plaintiffs have sufficiently alleged that Allington’s and Schwartz’ conduct was objectively offensive, extreme, severe, and pervasive. According to the allegations, Allington continually requested oral sex from Meints and Pesetsky, and made graphic and vulgar reference to female anatomy. He allegedly exposed himself to Pesetsky and others in the workplace. Schwartz, according to the allegations, continually asked Mittan about his sexual practices and preferences, and asked others in the workplace about Mittan’s sexual preferences.
[Cleaned up.]
The court concluded that “[t]hese allegations, presumed to be true, show conduct that was not merely rude or unpleasant, but conduct that is objectively, as well as subjectively to the plaintiffs, offensive, extreme, severe, and pervasive.”