In Kampmier v. Emeritus Corp., the Seventh Circuit considered the case of a licensed practical nurse who claimed that her openly lesbian supervisor sexually harassed her. The court denied the claim of sexual harassment, but confirmed that sexual harassment can be same-sex harassment. The case is a good refresher on all of the facts a court examines when ruling on a claim of sexual harassment.

The facts of the case are as follows. An assisted-living facility hired a nurse but fired her after six months for failing to show up to work. Nearly a year later, the nurse alleged that the facility’s executive director had sexually harassed her. Specifically, the nurse alleged that the facility director, a lesbian, frequently made offensive, explicit and sexually perverse comments to her and to other women, joked about being gay, and engaged in unwanted physical contact.

The trial court dismissed the nurse’s case, but she appealed. The Seventh Circuit, however, reversed the trial court’s decision, and returned the case for trial.

PRIMA FACIE CASE FOR SEXUAL HARASSMENT

In analyzing the case, the Seventh Circuit Court of Appeals first restated the prima facie case for sexual harassment. A plaintiff must demonstrate that:

1. He was subjected to unwelcome harassment
2. The harassment was based on his sex
3. The harassment was sufficiently severe or pervasive so as to alter employment conditions and create a hostile or abusive atmosphere
4. A basis existed for employer liability

A JURY COULD CONCLUDE THE HARASSMENT WAS UNWELCOME

The court first examined the issue of whether the harassment was “unwelcome.” The nurse testified that the director’s obscene comments and constant physical contact made her uncomfortable and that she had complained about the behavior on three occasions to higher management. Her direct supervisor confirmed this. The facility countered with evidence that the nurse had engaged in sexual banter herself. This evidence was not enough, and the Court concluded that a jury could conclude the harassment was “unwelcome.”

THE HARASSMENT WAS BASED ON THE NURSE’S SEX, EVEN THOUGH THE HARASSER WAS THE SAME SEX

The facility next argued that the director’s harassment wasn’t because of the nurse’s sex, because the director harassed both sexes — making her an “equal opportunity harasser.” The Seventh Circuit, however, found that the alleged harassment was far more severe and prevalent than what the male employees endured. The evidence submitted to the court was that the director constantly referred to female employees, made comments about their “boobs,” and told the women that she could turn any woman gay. As such, the harassment was based on the nurse’s sex.

THE HARASSMENT CREATED A HOSTILE WORK ENVIRONMENT

To prove that her work environment was hostile, the nurse had to demonstrate that it was both objectively and subjectively offensive. She estimated that, during her employment, the director hugged her 50 to 60 times, jumped in her lap 10 times and touched her buttocks 30 times. Based on the sustained physical contact — combined with the sexually explicit remarks — the court held that a jury could reasonably find that the comments and physical contact were objectively offensive.

The issue of whether the nurse subjectively found the conduct offensive was more closely contested. She had allowed the director’s lover to baby-sit her daughter in the director’s home, she had visited the director in the hospital after she had surgery and had given her a card, and she had at least once medically assisted the director’s mother. Despite this evidence, the Court still determined that it was a jury question.

BECAUSE THE FACILITY DID NOT ADEQUATELY ADDRESS THE NURSES’ COMPLAINT

In defense, the facility sought to defend the claim of sexual harassment by raising an affirmative defense. An employer may raise an affirmative defense to liability or damages, provided the nurse did not claim any “tangible employment action” (which she did not). To establish the affirmative defense, the facility needed to demonstrate:

1. It exercised reasonable care to prevent and promptly correct any sexually harassing behavior.
2. The nurse unreasonably failed to take advantage of any employer-provided preventive or corrective opportunities or to otherwise avoid harm.

The affirmative defense did not work. The nurse testified that despite her complaints about the harassment to three different managers, the facility did not discipline the director. Further, the nurse’s supervisor testified that the director’s actions “negatively impacted the workplace,” but the regional operations director “did not want to hear about it.”

The Seventh Circuit, therefore, remanded the case back to the trial court for trial.