Can Harassment Of OTHERS Help Prove That A Plaintiff Endured A Hostile Work Environment? – Discrimination, Disability & Sexual Harassment

Have you ever heard of me-too evidence?

Plaintiffs in discrimination cases may attempt to introduce
me-too evidence to the jury to establish that the same harasser
directed the same acts of discrimination or harassment against
other employees. This evidence helps demonstrate a pattern or
practice of misconduct that makes their own claims of
discrimination or harassment seem more likely.

In a decision I read recently, the plaintiff, a
supervisor, alleged that her boss subjected her to a hostile work
environment. To establish a hostile work environment claim, the
plaintiff had to show that her boss subjected her to unwelcome
harassment based on a protected characteristic and that it was
severe or pervasive enough to affect a term, condition, or
privilege of employment.

At trial, the plaintiff relied on me-too evidence over
objections from the defendants, and the jury awarded her over
$700,000. On appeal, the Iowa Supreme Court warned that a plaintiff
cannot use me-too evidence about which she was unaware to provide
that she experienced severe or pervasive harassment.

For example, at trial, the plaintiff first heard a
coworker’s graphic testimony about how a supervisor harassed
her and displayed photos of sex toys and phallic candles in her
office. The plaintiff also first heard at trial another supervisor
recounting sexual jokes by the same supervisor, which the
plaintiff’s alleged harasser overheard. The trial court should
not have allowed the jury to consider any of this as evidence that
the plaintiff herself endured a hostile work environment.

Instead, the focus should have been on evidence of severe or
pervasive harassment that the plaintiff herself experienced. The
appellate court concluded that the plaintiff had failed to meet her
burden of proof. She never testified that her supervisor physically
threatened her or anyone else. No one touched her inappropriately,
propositioned her for sex, or pressured her for romance. Instead,
the jury mostly heard evidence that her boss was rude to her, gave
her extra work, and favored a female coworker.

One time, the plaintiff’s supervisor made an inappropriate
sexual comment to the plaintiff about her. But one bad joke or
comment—even from a direct supervisor—is not enough to
establish a hostile work environment. While he did make other
inappropriate comments about other women in the plaintiff’s
presence or about which she heard secondhand, those are considered
less severe or humiliating. Otherwise, “[t]he American
workplace would be a seething cauldron if workers could with
impunity pepper their employer and eventually the EEOC and the
courts with complaints of being offended by remarks and behaviors
unrelated to the complainant except for …having overheard, or
heard of, them.”

None of this was severe or pervasive enough to alter the
conditions of the plaintiff’s employment.

Judgment reversed, and case dismissed.

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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.