‘Clear’​ Circuit Split on Sexual Harassment Requires SCOTUS Review, Employee Says

The U.S. Supreme Court should weigh in on a Title VII of the Civil Rights Act of 1964 sexual harassment standard and resolve a “clear and important” circuit split, an employee argued in a Nov. 12 filing (Paskert v. Kemna-ASA Auto Plaza, Inc., No. 18-3623).

The petition, originally filed in July, challenged an 8th U.S. Circuit Court of Appeals ruling in which the court applied its relatively high bar for showing that harassing conduct was sufficiently “severe or pervasive” to alter an employee’s working conditions and create an abusive environment, as Supreme Court precedent requires.

The case presents an “excellent vehicle” for reviewing the circuit’s precedent, the employee argued, because both parties agree that the standard was applied and that the decision didn’t rely on any alternative ground.

The 8th Circuit, in the challenged ruling, specifically noted that “our … precedent sets a high bar for conduct to be sufficiently severe or pervasive in order to trigger a Title VII violation.” Specifically, it requires courts to measure new allegations against those from previously decided cases. Only the 8th and 5th Circuits have such a requirement, according to the most recent filing.

The employer argued that other circuits use some level of precedent comparison, but the employee disagreed, saying most consider whether a “reasonable person” would find alleged conduct hostile, altering their work environment.

While the 8th Circuit’s precedent remains for now, employers may want to note that the U.S. Equal Employment Opportunity Commission (EEOC) takes the position that “[h]arassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”

Prevention is the best tool to eliminate harassment in the workplace, according to EEOC. The commission, in a guidance document, said it encourages employers to clearly communicate to employees that unwelcome harassing conduct will not be tolerated. Among other things, companies can establish a complaint process, provide training and act on complaints, the agency said.