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 plaintiff Clara Whitten was an assistant manager at Fred’s, a department store.  Matt Green worked with Whitten as the store’s manager.  After being transferred to Green’s store, Whitten only worked two days at the store before she felt compelled to quit because of sexual harassment from Green.  Whitten alleged that Green rubbed his genitals against Whitten on two separate occasions, that Green punished her by changing her schedule and giving her undesirable tasks because Whitten did not want to spend any time alone with Green, and that Green was verbally abusive.Whitten contacted the district manager, who was Green’s supervisor, and told the district manager of Green’s actions.   The district manager responded by telling Whitten that she was over-reacting.  Believing that the district manager would not rectify the situation, Whitten felt no choice but to quit.  After Whitten quit, she filed a sexual harassment complaint with the EEOC, which forwarded the complaint to the the South Carolina Human Affairs Commission.

As an initial matter, the Court considered whether Whitten’s sexual harassment claims were filed in time.  The Court held that the EEOC forwarding of Whitten’s complaint was sufficient to have it filed there, and that her state law claim was timely filed within one year of the discrimination.  Whitten also sufficiently disclosed the existence of her sexual harassment claim in her bankruptcy case.  (This is another important reason why bankruptcy law is important for employment lawyers to be aware of.)

In a sexual harassment case, a key issue is whether the company can held responsible for the harasser’s actions.  Key to that determination is whether the harasser is the plaintiff’s manager, or just a co-worker.  Fred’s argued that Green was not Whitten’s supervisor because Green did not have the power to hire, fire, or alter the terms of Whitten’s employment.  The Court rejected this bright line rule as to what constitutes a supervisor.  Examining the entire relationship between Green and Whitten, the Court noted that Green had the power to assign tasks to Whitten, had the power to alter Whitten’s schedule, and that their relationship was described as manager and assistant manager.  The Court noted that the issue was not even close and, as a matter of law, Green was Whitten’s supervisor.

The Court then remanded the case for trial.  Because there was no tangible employment action and no official act precipitating the asserted constructive discharge, Fred’s will be entitled to assert the affirmative defense to liability and damages as set forth by the Supreme Court in Faragher and Ellerth.