Even Non-Sexual Comments Can Be Sexual Harassment

Two 2010 cases show that even comments that aren’t specifically sexual can still amount to sexual harassment.

In one case, EEOC v. Fairbrook Medical Clinic, a female doctor who worked at a clinic sued over crude comments made by a male doctor. She claimed that over the course of several years the doctor repeatedly made inappropriate comments about her weight gain while pregnant and about breastfeeding.

A federal judge threw the case out, saying that “general crudity” didn’t amount to sex discrimination. But an appeals court in Virginia reinstated the woman’s suit. It said that sexual harassment could include “highly personalized comments designed to demean and humiliate” the doctor and “ridicule her in the eyes of patients and drug salespeople.”

In a 2d Circuit case, a federal appeals court in New York ruled that a male supervisor’s threats against a female employee could amount to illegal sexual harassment even if the threats themselves weren’t explicitly sexual or gender-related. The supervisor managed an engineering project for a company that built nuclear submarines for the U.S. Navy. A female employee claimed that he made advances toward her when his marriage began to break up.

When she complained, he said he wanted to kill her, choke her and “see her in a coffin.” A judge dismissed the suit, saying that the threats were highly inappropriate but didn’t amount to sex discrimination because a threat to kill someone has nothing to do with sex. But the appeals court allowed the woman’s lawsuit to go forward. It said that the threats were related to sex because they were the result of the fact that the woman spurned the man’s sexual advances. See Kaytor v. Electric Boat Corp., No. 09-1859-CV.

If you are a victim, or if you are unsure if the unwelcome comments/ behavior, you should contact a lawyer immediately. She/he may suggest that you directly inform the harasser, preferably in an email or memo, that the conduct is unwelcome and must stop. You may also be advised to use any employer complaint mechanism available such as those that may be found in the employee’s handbook or on the employer’s website.

When evaluating sexual harassment, all the facts and circumstances are examined: the nature of the sexual advances or offensive behavior, and the context in which the conduct occurred. Each case usually has its own unique facts and the strength and determinations made at MCAD and EEOC are made from the credible evidence on a case-by-case basis.

Please note that this communication does not constitute legal advice. If you have a question about this topic or any other business law or employment matter, call or email The Brown Law Firm, LLC, a Massachusetts firm dedicated to business and employment law.

Boston Bar Assosiation