For those seeking benefits, see this note from the North Carolina Employment Security Commission: “On July 22, 2010, the extension of the Federal Emergency Unemployment Compensation (EUC08) program was signed into law. The new law extends the filing deadline, but it does not provide for additional EUC08 tiers. The ESC is working with the Department of Labor to implement this change as quickly as possible. If you are currently filing for benefits please continue to do so. If you are not currently filing for benefits our agency will notify you on how to reinstate your claim.”

The main dispute in this case centers on whether Kessel’s conduct was sufficiently severe or pervasive to create a hostile work environment. As the Supreme Court has emphasized, “not all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within the meaning of Title VII.” Meritor, 477 U.S. at 67. To be actionable, sexual harassment must be objectively hostile or abusive, and the victim must subjectively perceive it as such.

If this case were merely about the crude or vulgar commentary which is an unfortunate feature of some workplaces, then Fairbrook would be correct to assert that the EEOC has no claim. Title VII, after all, is not “a general civility code.” Oncale, 523 U.S. at 81. “[W]hile no one condones boorishness, there is a line between what can justifiably be called sexual harassment and what is merely crude behavior.” Ziskie v. Mineta, 547 F.3d 220, 228 (4th Cir. 2008). Activities like simple teasing, offhand comments, and off-color jokes, while often regrettable, do not cross the line into actionable misconduct.

This case involves more than general crudity, however. Waechter’s allegations, if proven, show that Kessel targeted her with highly personalized comments designed to demean and humiliate her. In some cases, the remarks seemed intended to ridicule her in the eyes of patients and drug representatives. We have previously recognized that there is a difference between “generalized” statements that pollute the work environment and “personal gender-based remarks” that single out individuals for ridicule. See Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 197 (4th Cir. 2000). Common experience teaches that the latter have a greater impact on their listeners and thus are more severe forms of harassment.

The fact that this interaction took place at a medical clinic need not negate its severity, as Fairbrook contends. It is true that employees at Fairbrook had clinical duties which are not part of other professions, and it is likewise accurate that some employees, including Waechter, occasionally made off-color remarks. But a plaintiff’s claim is not defeated solely because she engages in some crude behavior.

Moreover, we decline to accept the argument that a medical setting, because it deals with human anatomy, is somehow liberated from professional norms. This argument is essentially an effort to exempt medical settings from the requirements of Title VII, notwithstanding the fact that Congress did not do so.

Second, Fairbook argues that Kessel’s conduct was not sufficiently severe because it did not cause Waechter to miss work due to stress or otherwise adversely affect her job performance. These factors, while relevant, are not decisive here. “Title VII comes into play before the harassing conduct leads to a nervous breakdown.” Harris, 510 U.S. at 22. The fact that a plaintiff continued to work under difficult conditions is to her credit, not the harasser’s. Moreover, the fact that Waechter continued to provide quality care to her patients in spite of Kessel’s conduct is not dispositive either.

For the reasons above, we conclude that the EEOC has produced evidence from which a reasonable jury could conclude that Kessel’s conduct was severe or pervasive enough to create a hostile work environment. This evidence, if proven at trial, indicates that Kessel, who was both Waechter’s supervisor and the sole owner of the establishment, crossed the line from general crudity into actionable harassment by subjecting Waechter to a series of sexually graphic and unmistakably personal remarks that made her work environment intensely uncomfortable.

The Senate has yet to act.  Because the unemployment benefits have expired, unemployed workers are losing benefits right now, and will cotninue to until the Senate passes a matching bill.  The N&O has this article on effects to workers in North Carolina.  It is imperitive that the Senate quickly pass a bill to extend the unemployment benefits program, and include an extension of COBRA benefits.  With the unemployment rate still near 11% in North Carolina, unemployed and uninsured workers cannot afford more delay from Congress.

Summary: Although the interaction between the state employee benefits system and the workers’ compensation system has some points of friction that have been the source of litigation, as a general rule, the two systems fit together fairly neatly. This paper provides a broad overview of the benefits available to state employees from the State and discusses how the receipt of workers’ compensation benefits would affect these benefits. Finally, it discusses how the careful structuring of settlements can mitigate or avoid offsets of workers’ compensation benefits against benefits from the State.

Judge Davis fills the first of what had been five vacancies on the Fourth Circuit.  Two judges from North Carolina, Judge Jim Wynn of the North Carolina Court of Appeals, and Judge Albert Diaz on the North Carolina Business Court, were nominated to the Fourth Circuit last week.  Their nominations are pending.

The Guaranty Fund Bill was signed by Governor Perdue on August 7, and becomes effective immediately.  The text of the bill can be found here.