Sexual Harassment (Employment Law Series)

THIS CASEBOOK contains a selection of 227 U. S. Court of Appeals decisions that analyze and discuss issues surrounding sexual harassment. The selection of decisions spans from 2004 to the date of publication.

In order to prevail on a hostile work environment claim, [the plaintiff] must demonstrate that she was discriminated against because of her gender and that this discrimination created an abusive environment that was severe enough to alter the conditions of her employment. See Morris v. City of Colo. Springs, 666 F.3d 654, 663 (10th Cir. 2012). To determine whether the harassment was sufficiently severe, we consider "the frequency of the conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harsco Corp. v. Renner, 475 F.3d 1179, 1187 (10th Cir. 2007) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). [An employer] could be liable for an employee's sexual harassment under two theories: (1) vicarious liability; or (2) negligence. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (vicarious liability); Hirschfeld v. N.M. Corr. Dep't, 916 F.2d 572, 577 (10th Cir. 1990) (negligence). Generally, the vicarious liability theory applies only when the harasser is a supervisor, while the negligence theory applies when the harasser is a co-worker. See Kramer v. Wasatch Cnty. Sheriff's Office, 743 F.3d 726, 755 (10th Cir. 2014). Chavez-Acosta v. Southwest Cheese Company, LLC, (10th Cir. 2015).