Labor & Employment Law — 12/18/08

Offensive conduct not experienced firsthand by plaintiff was admissible

A district court improperly disregarded as irrelevant a female employee’s coworkers’ affidavits describing offensive language and conduct not experienced firsthand by the employee in determining that the treatment she endured was insufficiently severe or pervasive to create an abusive work environment, ruled the Fourth Circuit Court of Appeals. The employee, an air traffic controller, had alleged that she and other female workers at an air traffic control center in Leesburg, Virginia had been ‘subjected to a continuing atmosphere of harassment and intimidation on-the-job by male [air traffic controllers] with the acquiescence [of] management.’ (Ziskie v Mineta, 4thCir, 91 EPD ¶43,382).

The appeals court instructed that the district court’s rejection of the affidavits was inconsistent with circuit precedent. “Hostile conduct directed toward a plaintiff that might of itself be interpreted as isolated or unrelated to gender might look different in light of evidence that a number of women experienced similar treatment,” wrote the court. Although conduct experienced by the plaintiff might be more probative of a hostile work environment than conduct not witnessed by the plaintiff, that goes to the weight of the evidence, not its relevance or admissibility, emphasized the court. Evidence that many of her coworkers experienced treatment similar to that claimed by the employee could lend credence to her mistreatment claims, show the harassment she alleges was pervasive, or support a finding that she was treated poorly by coworkers because of her sex, and not some other reason. Since the district court may not have appropriately considered the employee’s coworkers’ affidavits, the appeals court reversed summary judgment for her employer and remanded the case for assessment of the affidavits and the weight they should be given.

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