Despite exposure to obnoxious, unprofessional and inappropriate workplace conduct, an employee recently lost a sexually hostile work environment claim because she failed to prove enough specific instances of severe or pervasive conduct. On May 11, 2023, the United States Court of Appeals for the Third Circuit held that conduct, which many would consider inappropriate and offensive, was not enough to create a sexually hostile work environment under federal and state law. 
Sexually hostile work environment: what is severe and pervasive?
The precedential opinion of the court serves as an important reminder that to prevail in a sexual harassment case, an employee must point to specific conduct that is truly “severe” or “pervasive” so as to effectively alter the terms and conditions of their employment.
In Nitkin v. Main Line Health, the plaintiff was a female Certified Registered Nurse Practitioner who often worked with a male Lead Doctor who, she alleged, over a period of about three-and-a-half years, engaged in various offensive conversations in private and group settings. The Lead Doctor talked about “his substance misuse, history, his beliefs on treating patients with substance misuse, his wife, his family and his upbringing.” Additionally, he asked members of his team about their personal lives, including their dating lives and past traumatic experiences.
Specifically, the plaintiff recounted the doctor’s stories about his wife giving him a candle to insinuate they were going to have sex, saying women can get anything they want from any man because they can just withhold sex, sharing he had sex with loose women (including his wife), recalling he said he had a date with a woman who took off all her clothes and wanted to act like a tiger, and commenting that a hospital visitor had “big fake tits.”
The plaintiff bore the burden of showing how her work environment was made hostile by the doctor’s behaviors and actions. While every case is unique, the court must consider the following to determine whether or not this conduct was “severe” or “pervasive”:
- the nature of the conduct;
- how often, and over what period of time, the conduct occurred;
- the circumstances under which the conduct occurred;
- whether the conduct was physically threatening or humiliating.
Sexually hostile work environment: be specific
In this case, the court reviewed the alleged conduct of the Lead Doctor, explaining that, it must “consider ‘the frequency of the [allegedly] discriminatory conduct’ in the context of a given case.” In doing so, the court noted that the trial court properly disregarded the plaintiff’s generalized assertions of harassing conduct, and focused on the plaintiff’s ability to specifically identify only “one or two statements in a given six-month period” and only five comments about which she could give any specifics at all. This led the court to conclude that the plaintiff failed to demonstrate that the remarks were sufficiently pervasive.
Then, when evaluating the nature and severity of the conduct, the court concluded that “although the Lead Doctor’s remarks were obnoxious, unprofessional, and inappropriate, he never threatened [the plaintiff], touched her, or propositioned her for a date or sex,” so “though offensive, the Lead Doctor’s comments were not sufficiently ‘extreme’ to create a hostile work environment.”
This is a notable court decision, particularly for employers in Pennsylvania, New Jersey and Delaware (the area within the jurisdiction of the Third Circuit), because it reinforces the strict requirement that to prevail on a sexual harassment or hostile work environment claim, a plaintiff must specifically identify numerous or extreme instances of sex-based conduct, and cannot simply rely upon generalized statements or subjective conclusions.
How employers can avoid a sexually hostile work environment
While the employer escaped liability in this case, despite a Lead Doctor’s repeatedly offensive remarks, it also serves as a reminder for employers of the need to protect organizational culture and morale, as well as mitigate the risk of workplace harassment claims, by:
- developing and implementing effective, written anti-harassment policies and complaint-reporting procedures
- training staff and supervisors on the policies and procedures, and
- involving experienced human resource and legal professionals when necessary.
FLB’s Employment Law group continues to monitor important legal and case developments as they evolve. Feel free to reach out to any member of the group for more information or assistance regarding these developments.