Court Watch
December 19, 1999

In a November 1999 ruling by the Eleventh Circuit Court of Appeals, the plaintiff lost her hostile environment sexual harassment claim despite accusations of repeated watching, crude sounds and touching. The ruling in Mendoza v. Borden encourages trial judges to enter judgments in borderline cases which might earlier have been allowed reluctantly to proceed before a jury.

WATCHING, SNIFFING AND TOUCHING
On initial examination, Mendoza seemed to allege conduct serious enough to reach a jury. She accused her supervisor of silently watching and following her throughout the plant. The supervisor also twice, "looked at me up and down, and stopped in my groin area and made a sniffing motion." Finally, near the doorway to the fax machine, "he went by me and he rubbed his right hip up against my left hip." Although he gave her "a big smile," this was the only physical contact alleged during the 11 months she worked for the supervisor.

SUBJECTIVE AND OBJECTIVE STANDARDS
Harassing conduct must be sufficiently severe or pervasive to alter the terms or conditions of employment. First, the employee must "subjectively perceive" the harassment as sufficiently severe and pervasive. Second, the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering "all the circumstances." Four factors are examined in assessing the "objectivity" prong:  (1) the frequency; (2) and severity of the conduct; (3) whether the conduct is physically threatening or humiliating or merely an offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance. Thus, trial courts have been admonished to examine the conduct in context, not as isolated acts, to determine under the totality of the circumstances whether the harassing conduct is sufficiently severe or pervasive to alter to the terms or conditions of the plaintiff's employment and create a hostile or abusive working environment.

HOW MUCH EVIDENCE IS ENOUGH?
Because the four factors are not ranked in importance and must be viewed in context, trial judges have been reluctant in many cases to direct a verdict and withhold such cases from the jury. The Eleventh Circuit has now articulated at least one set of accusations justifying such a preemptive judgment.

The Mendoza decision and dissent opinions devote substantial attention to the facts reported in numerous cases; each side arguing that this or that conduct is more or less severe than Mendoza's allegations. While the experts may bicker over whether Mendoza articulates new law, a ruling based on these facts gives employers hope.

First, a single, brief touching in a doorway without vulgar comments or further behavior was so devoid of content that it failed even in the totality of the circumstances to be evidence of a hostile environment.  Second, the "watchdog" behavior, without more, could be explained away as merely part of the supervisor's job responsibilities. Third, the sniffing incidents were not sexual in nature given the lack of further elaboration. Although sniffing certainly can constitute sexual harassment in a given situation, here the minimal content of Mendoza's allegations were so thin that no reasonable jury question arose.

LESSONS TO BE LEARNED
With such a ruling, employers may be able to successfully cut off some claims with aggressive investigation which captures a plaintiff's conclusory allegations at the earliest possible stage. Many accusations of touching, leering and overt sniffing, slurping or sucking noises merit a vigorous examination with the increased promise that the plaintiff may still not have enough evidence of conduct sufficiently severe and pervasive to constitute a hostile environment of sexual harassment.