Peeping is harassment, even if “peep-ee” doesn't see it going on, court says

Of course it is!

Every time I think I’ve heard everything, I hear another thing.

"LOOK WHAT FELL INTO MY LAP. BETTER TELL THE BOSS."

Melinda Abbt was a firefighter for the City of Houston. On her own personal computer, she had a video of herself dancing nude. She made the video for her husband and no one else. She never showed it to anyone else and did not give anyone other than her husband permission to view it.

But she did bring her personal computer to the firehouse.

Somehow (we don't know how) her junior captain in the fire department got a copy of the video. In 2008. He viewed the whole video once, and then "thought about it" for “several days.” Then he told his supervisor about it, and the supervisor asked to see it. After watching it, the supervisor asked the junior captain whether he had told anyone else about it. When the junior captain said no, the supervisor said, “Good.” He promised to get back with the junior captain about what to do.

The supervisor did in fact get back with the junior captain. He told the junior captain to send him a copy of the video because he wanted to see it again. Rather than forward the video, the junior captain gave the boss his password so that the boss could view the video again.

And again.

And again. And again.

"ENCORE. ENCORE. ENCORE. ENCORE. ENCORE. ENCORE. ENCORE. ENCORE. ENCORE."

One year later, the supervisor told the junior captain that the password wasn’t working any more. This time, the junior captain forwarded the video to his boss. He and the boss continued watching the video.

For eight more freakin' years.

In 2017, the supervisor confessed to Ms. Abbt’s husband, who was also a firefighter, that he’d seen the video. (I would love to know what prompted the belated confession, but the court's decision doesn't say.)

When Ms. Abbt found out, she was understandably mortified, couldn't face working with these guys any more, started calling in sick, and was diagnosed with Post-Traumatic Stress Disorder. She got leave under the Family and Medical Leave Act and workers’ comp benefits, and was eventually separated from the fire department for medical reasons in 2019.

(Remember that, as a firefighter, she would have been living and sleeping at the firehouse with these guys.)

Ms. Abbt made an internal complaint, which was resolved in her favor. The junior captain, the supervisor, and another guy who watched the video were suspended.

Suspended!

And the junior captain got a double demotion.

Demotion!

"UH, DID YOU SAY SOMETHING? I WASN'T LISTENING."

The supervisor apparently decided that it was an opportune time to retire in lieu of suspension.

Retire!

Then Ms. Abbt sued.

The remarkable thing is not that she sued, but that the lower court granted summary judgment to the City and to the junior captain. Among other things, the court said that Ms. Abbt was not sexually harassed because she wasn't actually watching her "colleagues" as they watched her video. Also, she couldn’t prove that her video was stolen while she was at work.

But a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit begged to differ. The court said that the harassment was not based completely on the theft of the video but also “the affirmative decision [by the junior captain and his boss] to repeatedly view Abbt’s intimate video without her permission.”

Moreover, “we decline to hold as a matter of law that a person must contemporaneously experience harassment for it to be actionable under Title VII.” (Emphasis added.) In other words, the fact that the guys were watching her video for a total of nine years – nine years! – before she found out about it does not defeat her claim because she eventually found out what they were doing and it caused her severe trauma.

As far as the City's liability was concerned, the panel found that the supervisor was a "supervisor" for Title VII purposes, so the City was on the hook for his bad acts and failure to report the harassment up through his chain of command. This is despite the fact that the City itself seems to have tried to do the right thing once it became aware of what was going on. (In my opinion, the guys should have all been fired, but they may have had civil service protections.)

So, now Ms. Abbt gets a trial. I wonder how that will go. No, not really.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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